September 7, 2022

Commissioner Carbone

advised the Commissioners did not do questions and answers. He suggested Ms. Trenner call each of them. September 7, 2022 2. GENERAL PUBLIC COMMENT (up to three-minute time limit per person.) Action will not be taken on the matters considered during this period until specifically included on an agenda as an action item (first)-Cont’d. Tim Bohannon said he would like to see the Carvers Arena get some attention. Darrell Lackey talked about his run for the Clerk’s position; how all the Commissioners were in Tonopah; the vote to put Mark Kampf in office; and the decision to put Section 8 housing in town instead of his plan. Pat Minshall talked about the confiscation of 300 dogs from Vasili Platinov in Amargosa on August 22, 2022. In 2010 Mr. Platinov was granted approval for 30 dogs on his property in Pahrump. In 2015, 2017, and 2019 he appeared before the Commission and was denied approval for 150 dogs. Numerous complaints had been made to the Commission by the neighbors about the conditions of the kennel and the dogs. Ms. Minshall felt Pahrump did not want this kennel with mistreated dogs in their back yard so they sent it to Amargosa. The County, Animal Control and the Sheriff had let Amargosa down. She asked that her statement be included in the minutes [see Attachment 1]. John Bosta advised the BLM had taken the State of Nevada off of their Web site so land patents could not be researched. He then noted it was sometimes difficult to distinguish if the discussion was about County business or unincorporated town business and he could not distinguish which hat the Commissioners were wearing on some of the budget items. Erika Gerling said she was present in Beatty. Laura Larsen stated California was trying to go to full electric vehicles by 2035, but they were in an emergency status to save energy with rolling blackouts as of yesterday so she wondered where the electricity was coming from. She stated it was fossil fuels they were trying to get rid of. She also got an e-mail from NV Energy asking everyone to set their temperatures at 78 degrees. Ms. Larsen felt that was just the start of rolling blackouts. She then reminded everyone the Nye County Republican Central Committee would have a precinct strategy meeting this evening from 6:00 p.m. to 7:00 p.m., at 4760 Pahrump Valley Boulevard, Suites 9 and 10. All precinct captains were asked to attend as well as anyone else interested in securing the vote in November. Also, at that same location on September 10, 2022, at 10:00 a.m. there would be a register Republican meeting. Annette Fuentes said she and Victor Fuentes had been out of town and had not had a chance to thank the Commissioners, staff, and everyone else who helped them on July 30, 2022. Diane Southworth hoped the seniors and people ready to retire paid attention to who they voted for this fall. She said Republican Senator Rick Scott had come up with a September 7, 2022 2. GENERAL PUBLIC COMMENT (up to three-minute time limit per person.) Action will not be taken on the matters considered during this period until specifically included on an agenda as an action item (first)-Cont’d. plan to vote on whether to keep Social Security and Medicare once every five years, turning it into an entitlement. As to the overturning of Roe vs. Wade, Ms. Southworth thought Judge Alito had it right, abortion was not listed in the Constitution, but neither were women. She thought he forgot the Ninth Amendment regarding how certain rights shall not be construed to deny or disparage others retained by the people. Lastly, Ms. Southworth said she spoke to a young woman who had a pre-school child that she did not send to school this year because she was afraid he would not come home. People needed to think about what was going on in the schools. Victor Fuentes thanked the Commissioners for their support. He said they were able to start putting the water back in the camp and he submitted paperwork for the record [see Attachment 2].

Commissioner Jabbour

stated at no time did Tina Trenner talk to him about Mark Kampf and voting.

Commissioner Cox

advised the RAM fundraiser would be Friday from 5:00 p.m. to 7:30 p.m. at the yEA. Tickets at the door would be $10.00. Commissioner Cox stated she had not made any decisions based on what Tina Trenner said.

Commissioner Strickland

said NACO would carry a bill draft resolution for a population cap at the County’s request. She explained the County had reached a population of over 45,000, which comes with unfunded mandates per NRS such as a County-wide planning commission. Also, Commissioner Strickland was just named to the National Association of County’s Public Land Steering Committee.

Commissioner Blundo

told the Fuentes’ the Board supported them. He pointed out there were a variety of comments during public comment and he appreciated hearing that. Mark Kampf said there was a press release yesterday announcing paper ballots would be done for the voting with accommodations for those with disabilities. He was also implementing the Commissioners’ desires to do a hand count with parallel tabulations. He encouraged the citizens who were registered voters in the County to go to the Clerk’s Web site to either be part of the hand count team or a poll worker. September 7, 2022 3. Commissioners’IManager’s Comments (This item limited to announcements or topiclissues proposed for future workshopslagendas)-Cont’d.

Commissioner Carbone

expressed his concerns about the function of the Parks and Recreation Advisory Board and thought its position needed to be reconsidered if it was really required. He then asked how many people were on leave in the County. Natural Resources Director Lorinda Wichman provided an update on the lands bill. Fire Chief Scott Lewis said a temporary flag pole had been erected at Station 3. He explained it was temporary because there was a project underway that would change the footprint of the property. Station 4 would also get a flagpole once the project there was finished.

Commissioner Blundo

said he was not a proponent for arbitrarily raising rates, but he thought there should be a streamlined process and that was what this would accomplish.

Commissioner Carbone

opened the public hearing. Cheryl Wakefield said she sent a letter to each Commissioner. She was not opposed to small increases, but the increases being talked about were high and she hoped they would consider the information given today. A majority of the people who lived in September 7, 2022 9. 10:00 a.m. For Possible Action Public Hearing Discussion, discussion and — — — deliberation to adopt, amend and adopt or reject Nye County Bill No. 2022-13- Cont’d. Gabbs were retired, on Social Security, or disabled, and they were living on $13,000.00 to $14,000.00 a year. Ms. Wakefield knew Premier paid a significant amount of taxes and suggested more of those funds be returned to go toward the water and sewer system. She felt people would leave Gabbs if this was passed. Janice Lyman agreed with the previous comments. The population in Gabbs was 175, and nine had already left. In 1942 the magnesium mine began operations, currently known as Premier, which was the longest continuing operating mine in the State. They contributed a large amount of money to the County, but Gabbs did not receive much of it. Ms. Lyman suggested letting Premier get on board and then look at the numbers and make a decision.

Commissioner Carbone

explained the document right now was to talk about the change of the language inside the bill, not the issue of rates, and asked Ms. Lyman if she had any comments against the ordinance that clerical changes were being made to.

Ms. Lyman

said no. John Bosta asked if the Commissioners was acting as the Board for Nye County or as the governing board of the Town of Gabbs as it was unclear.

Commissioner Carbone

said they were acting as the Board of County Commissioners because the Town of Gabbs was an advisory committee.

Mr. Bosta

said he asked legal counsel at the last meeting and she said her job was to ensure he was in line with the Open Meeting Law. This item was for the County, not the Town of Gabbs. Savannah Rucker was present if the Board had any questions.

Commissioner Carbone

closed the public hearing.

Commissioner Blundo

made a motion to adopt with an effective date of January 1, 2023; seconded by Commissioner Strickland; 5 yeas. September 7, 2022

Commissioner Carbone

opened the public hearing. Darin Tuck explained this was an entirely new ordinance for the sewer as Gabbs did not have one.

Commissioner Carbone

closed the public hearing.

Commissioner Blundo

made a motion to adopt with an effective date of January 1, 2023; seconded by Commissioner Strickland; 5 yeas. PUBLIC WORKS

Commissioner Strickland

pointed out page 6 of the executive summary showed the current residential rate for service was $62.00 and that would increase to $66.00. The residential up to 10,000 gallons was free, which was 333 gallons a day per household. The average household was between 250 and 350 gallons per day in a single-family residence. She said none of this looked out of whack to her and she was unclear as to why these rates would be unmanageable for the community.

Commissioner Jabbour

noted the average median income per household in Gabbs was shown as $57,000.00, but he was not sure where that number came from and felt clarity was needed on that. He then explained the concern was with the eventual increase to $85.00. When he was at the Gabbs meeting one of the things he heard, which might help to clarify, was currently they were allowed to use 50,000 gallons a month. Mr. Tuck was trying to compromise in bringing it down to 5,000, but the citizens September 7, 2022 33. For Possible Action Discussion and deliberation to adopt, amend and adopt, or reiect Nye County Resolution No. 2022-35-Cont’d. thought it was more reasonable to bring it to 10,000 to 12,000. Commissioner Jabbour also knew Mr. Tuck had been working on a grant specifically for Gabbs.

Commissioner Carbone

added the rates were how the County could get the grant.

Commissioner Cox

said she could see there was a lot of money, time, and effort put into this. It had been needed for years and she felt this would work out best for Gabbs in the long run. She supported it and felt this was the only way improvements could be made. John Bosta asked Commissioner Carbone to state for the record if the Commissioners were acting as the Nye County Board or as the town board for the Town of Gabbs.

Commissioner Carbone

said they were sitting as the Nye County Board of County Commissioners responding to the issue with the unincorporated advisory board of Gabbs. Todd Wakefield talked about the vacant lots and meter charges. He felt $35.00 a month for a vacant lot was ridiculous. He wondered what would happen if a lot of people let the County take the lot back for taxes creating more junk lots in Gabbs. He said there were several legal things that could come up with this also because the meters were not installed properly. Additionally, some of the meters were on city property and some were on the property owner’s land. Mr. Wakefield thought it was completely unfair to be charged $35.00 for a water meter that was on city property, not his property. April Stewart said she was on the town advisory board and was also the Gabbs postmaster relief. She had lived in the community on and off all of her life and felt the County had neglected the infrastructure. She understood the rate increase was necessary to get the town up and running again, but she felt it was an unreasonable burden to place on people especially when Premier was attempting to connect to the current infrastructure. To allow that to happen the $35.00 fee needed to be removed. Lee Green said he served on the Gabbs board and agreed with the previous speakers. He asked the Commissioners to keep in mind Gabbs was a low-income community and the increases would adversely affect the community. He also did not understand the $57,000.00. He understood Premier would be put on the water system and asked if a study was done on the stress that would put on the water system. Mr. Green also disagreed with the $35.00 empty lot fee and said the only other empty lot fee he could find was in Round Mountain, which was $2.00 a month. He said the consensus of the community was they stood in opposition to the rate increases, although they understood the need to pay for infrastructure. September 7, 2022 33. For Possible Action Discussion and deliberation to adopt, amend and adopt, or reject Nye County Resolution No. 2022-35-Cont’d. Janice Lyman pointed out the budget showed $70,000.00 in depreciation for 2023, which was listed as an expense and deducted from the budget. She wondered if the cash could go into the water reserve fund and how many years it would be depreciated. Bridgette Harris from RCAC explained the $57,315.00 figure was from the Census Bureau, which she knew was not realistic. Their margin of error was $28,000.00 on that, but that number was used in the report. For the analysis Ms. Harris used $40,300.00.

Commissioner Cox

said she did not support the fee for the meter charges and did not realize that was for everyone. She felt the opinions of the advisory board members should be considered and asked if this had gone before the advisory board.

Commissioner Blundo

said they discussed it, but they did not come to a consensus.

Commissioner Cox

felt it should be sent back and put on their agenda so their voices could be heard.

Commissioner Carbone

understood it had been on the agenda twice and asked how long ago that was.

Mr. Tuck

said the first meeting was on June 5, 2022. There was one last month and it was agendized, but no action was taken.

Commissioner Cox

wondered if it should be taken back to the advisory board. Obviously the people were opposed to a fee for vacant lots, which she would like removed. As to controlling how much water was used, she did not think conservation should be part of this.

Mr. Tuck

advised this all went through legal review. He attended the meeting in Gabbs on June 5, 2022. The public voiced their opinion and gave a suggestion to bring it from 5,000 to 10,000. The board unanimously agreed to that, so the rate structure was modified and brought to the second meeting. He wanted to get something from them that the advisory board heard this and agreed.

Commissioner Carbone

said he knew the County’s position on another portion of this regarding water. He asked if removing the $35.00 lot fee would cause a problem.

Commissioner Jabbour

felt if the $35.00 per parcel and inactivated meter fee were eliminated the residents would not be able to absorb that cost. September 7, 2022 33. For Possible Action Discussion and deliberation to adopt, amend and adopt, or reject Nye County Resolution No. 2022-35-Cont’d. Public Works Director Tom BoIling said if the $35.00 a month fee for 50 lots was eliminated, it would be distributed throughout the monthly fees of the rest of the residents using it because $45,000.00 was required to make it a sustainable system. Without a sustainable system the County would not qualify for any grants. Even if Premier used 500,000 a month they would not make up the $45,000.00 shortfall.

Commissioner Jabbour

noted if the fee was removed the amount absorbed by each active meter would be $18.75 in addition to the proposed rate. The concern was what the rate was going up to now and he did not see how they could afford the $18.75 if the $35.00 fee was removed.

Commissioner Cox

asked if this item could be held for another month so Mr. Tuck and anybody else he needed could look at this again. She thought the meter fee could be zero to try to put the grant through and then added later at a different amount.

Commissioner Blundo

asked Commissioner Cox to approve it as written as it proved sustainability and it could be reviewed after Premier hooked up.

Commissioner Jabbour

asked Mr. Tuck if time was of the essence now.

Mr. Tuck

said he was not sure. The County was being allowed to proceed with the application, but before any funding was given there had to be a rate structure.

Commissioner Blundo

made a motion to adopt; seconded by Commissioner Strickland; 4 yeas. Commissioner Cox voted nay.

Commissioner Blundo

made a motion to adopt; seconded by Commissioner Strickland; 4 yeas. Commissioner Cox voted nay. September 7, 2022 CONSENT AGENDA ITEMS These are items that Staff recommends for approval. The Board reserves the right to move any consent agenda item to the regular segment of the agenda should issues arise that need to be addressed. Discussion of any item from the Consent Agenda Items that needs review before a decision is made. 14. For Possible Action Approval of Assessor’s Office Change Reque sts to allow the Nye County Assessor/Treasurer to process and: 1) Issue an amended tax bill in the amount of $385.23 to Annette Osterhoudt, owner of 71 N. Dove St., Pahrump, NV, Assessor’s Parcel Number 036-1 03- 01. 2) Issue an amended tax bill in the amount of $3,798.93 to Timothy Ray, and Janeen M. Casebolt, owners of 1040 S. Nail Creek Ct., Pahrump, NV, Assessor’s Parcel Number 039-482-06.

Commissioner Blundo

made a motion to approve items 15-18; seconded by

Commissioner Jabbour

; 5 yeas. 15. For Possible Action Approval of meeting minutes from the regular loint meeting on June 7, 2022, and June 22, 2022.

Commissioner Blundo

made a motion to approve items 15-18; seconded by

Commissioner Jabbour

; 5 yeas. 16. For Possible Action Approval to: 1) Accept the Federal Fiscal Year 2023, Victims of Crime Act (VOCA) Award #2020-V2-GX-0049 through the State of Nevada Department of Health and Human Services, Division of Child and Family Services, in the amount of $34,756.00 with a County Match of $34,756.00, for the period of July 1,2022 through July 31, 2023, to provide advocacy through the criminal justice process and provide training and education; 2) Execute the grant award documents; and 3) Fund $34,756.00 to Grants 10340, and Fund $34,756.00 to General fund 10101.

Commissioner Blundo

made a motion to approve items 15-18; seconded by

Commissioner Jabbour

; 5 yeas. Contracts and Grants Manager Stephani Elliott advised the County match was waived . 17. For Possible Action Approval to renew cannabis licenses for Fiscal Year 2023 pursuant to Nye County Code 5.32.080(A).

Commissioner Blundo

made a motion to approve items 15-18; seconded by

Commissioner Jabbour

; 5 yeas. September 7, 2022 18. For Possible Action Approval of LD-21 -112 Merger Re-subdivision Parcel Map for Tonopah Elks Lodge, parcels 17 through 27 and the northwest 15 feet of parcel 28, Block N, Town of Tonopah, Assessor’s Parcel Numbers 08-061-06, 08- 061-08 and 08-061-10, a portion of Section 35, Township 3 North, Range 42 East, MDM, Tonopah. Property Owners Nye County Board of County Commissioners, and Benevolent and Protective Order of the Elks of the U.S.A.

Commissioner Blundo

made a motion to approve; seconded by Commissioner Jabbour; 5 yeas. BOARD OF COMMISSIONERS 19. For Possible Action Closure of meeting, pursuant to NRS 241 .015(3)(b)(2) for purposes of conferring with legal counsel regarding potential or current litigation. This item was removed from the agenda. 20. Closed meeting, pursuant to NRS 241 .015(3)(b)(2) for purposes of conferring with legal counsel regarding potential or current litigation. This item was removed from the agenda. 21. For Possible Action Discussion and deliberation on conference with legal counsel regarding potential or current litigation presented in closed meeting. This item was removed from the agenda. 22. For Possible Action Closure of meeting, pursuant to NRS 288.220 for purposes of conferring with the County’s management representatives regarding labor negotiations, issues, and other personnel matters. This item was removed from the agenda. 23. Closed meeting, pursuant to NRS 288.220 for purposes of conferring with the County’s management representatives regarding labor negotiations, issues, and other personnel matters. This item was removed from the agenda. 24. For Possible Action Discussion and deliberation on labor negotiations, issues and other personnel matters presented in closed meeting. This item was removed from the agenda. September 7, 2022 25. For Possible Action Discussion and deliberation to declare Kent Jasperson’s Justice of the Peace position vacant and determine whether to: 1) Fill the unexpired term ending in 2027 by appointment; or 2) Pass a resolution to hold a special election to fill the position for the unexpired term.

Commissioner Blundo

made a motion to determine the position was vacant and that the unexpired term ending in 2027 would be filled by appointment; seconded by

Commissioner Strickland

asked for a friendly amendment to change the term to allow the people the opportunity to vote sooner rather than later.

Commissioner Carbone

pointed out that was the term.

Commissioner Blundo

thought it would come up in the next election cycle for the remainder of the term as this was an appointment. Mark Kampf said he would have to double check, but he believed it would be on the next election cycle for the voters to decide for the remaining unexpired term. John Bosta said it was important to replace the judge as soon as possible as he had a court date on October 2, 2022.

Commissioner Carbone

asked for some input before the day was over.

Mr. Sutton

said staff would still proceed with the advertising and application process and would bring an item back to address the term if necessary. The Board was in recess until 1:30 p.m.

Commissioner Cox

was not present. September 7, 2022 TI MED ITEMS 6. 10:00 am. For Possible Action Fiscal Year (FY) 2023 Community Development Block Grant (CDBG) 3rd Public Meeting: 1) Presentation of potential projects; and 2) Invite the Public to participate in providing ideas, comments and suggestions concerning proposed projects. Contracts and Grants Manager Stephani Elliott advised she received information that public service projects would not be given Nevada state priority this year and would not be considered for funding. Due to that, the Full Circle start-up project as well as the Spaying Critters Avoiding Litters would be removed from consideration. Also, Donna Corey withdrew her presentation voluntarily after speaking with Jimmy Martinez. Nevada state priority this year would be affordable housing; community stabilization and development; public facility and infrastructure; economic development; community planning or capacity building; and providing solutions to homelessness.

Commissioner Blundo

asked for a list to be given to the Board and available to the public of what would and would not be considered.

Ms. Elliott

advised on the Finance page on the Nye County Web site was a CDBG page where a handbook could be found that stated what the priorities were, but she would get a clarification e-mail out to everyone. Molly Walt from Nevada Rural Counties RSVP presented her project for Seniors Helping Seniors and the Community in the amount of $59,000.00 mainly for mileage reimbursement, transportation costs, and a part-time driver.

Commissioner Cox

was present. Pat Minshall presented her projects for a digital marquee for $50,000.00 plus the cost for an electrical hook-up; artificial lawn for the Amargosa Library for $23,000.00; and artificial turf for the Amargosa Clinic for $45,000.00. Darin Tuck discussed the Tonopah airport fueling station. The photograph in the back up showed what the Tonopah fueling station would look like, just a little longer with bigger tanks. As to Commissioner Jabbour’s questions about land and the cost of a spill, Mr. Tuck talked to one of the consultants and it could cost between $50,000.00 and $100,000.00 just to clean-up depending on the ground penetration, which could raise the cost. He took a second look at the tanks and talked with the current purveyor. Two of the tanks are at least 50 years old and the other was about 40 years old.

Commissioner Jabbour

asked about the cost to replace those.

Mr. Tuck

explained the $600,000.00 fueling station would replace those. Regarding

Commissioner Carbone’s

question regarding return on investment, Mr. Tuck said he had talked to the current purveyor and in one year he sold 84,000 gallons of fuel, September 7, 2022 6. 10:00 a.m. For Possible Action Fiscal Year (FY) 2023 Community — — Development Block Grant (CDBG) 3rd Public Meeting: 1) Presentation of potential proiects; and 2) Invite the Public to participate in providing ideas, comments and suggestions concerning proposed projects-Cont’d. 65,000 gallons of which was jet A. His calculations showed it would take about 12 years to pay for the investment if the County funded it itself. He thought the CDBG grant was the best option.

Commissioner Cox

said this block grant program was for low-income items, not for the County that had a lot of money. She asked how this fit into the grant as she felt it would not qualify.

Ms. Elliott

explained Nye County was at 51% plus as far as low-income, and all of Tonopah was extremely low-income. This would benefit the whole northern community of Tonopah as well as outside of Tonopah.

Commissioner Cox

thought making money off of this might be an issue.

Commissioner Carbone

asked if there was a profit made. Public Works Director Tom BoIling advised all proceeds would go to help all of the airports in Nye County, just like the airport tax made now on selling fuel.

Commissioner Strickland

felt this was a huge community need.

Mr. Tuck

pointed out medical ambulances used the airport frequently, and it was a popular hub for flights throughout the State. Joni Eastley, past president and current board member of the Nevada Aviation Association, advocated on behalf of the project. Misha Allen, UNR extension educator, stressed the importance of the airport with the medical issues in the community.

Commissioner Carbone

asked Mr. Tuck to find out if there would be any kind of profit.

Commissioner Blundo

asked how many projects would be identified in November, 2022.

Ms. Elliott

said there were seven submitted applications and she was looking at five the Nye County-sponsored one for the airport, the three from Amargosa, one who did not present today for home healthcare, and RSVP. Darrell Lackey said he had talked about his park program before that encompassed everything discussed and it would include teaching people how to build solar trackers to September 7, 2022 6. 10:00 a.m. For Possible Action Fiscal Year (FY) 2023 Community — — Development Block Grant (CDBG) 3rd Public Meeting: 1) Presentation of potential proiects; and 2) Invite the Public to participate in providing ideas, comments and suggestions concerning proposed projects-Cont’d. sell to the public or to the utilities. When asked by Commissioner Blundo if he had made an application he said no.

Commissioner Blundo

suggested he talk to Ms. Elliott and get his application in to be considered. Ammie Nelson wondered what would be done with the profits at the Tonopah Airport. Tim Bohannon thought using the CDBG for the airport would be fantastic. Robin Rose Yeager asked when she would be permitted to present as she was not allowed to today.

Commissioner Carbone

told Ms. Yeager to contact Ms. Elliott. SITTING AS THE GOVERNING BODY OF UNINCORPORATED TOWN OF PAHRUMP 13. For Possible Action Discussion and deliberation to: 1) Discuss the bid proposals received for Bid No. TOP 2022-02 Completion of Veterans Memorial Building; 2) Award Bid No. TOP 2022-02 Completion of Veterans Memorial Building to Double M Construction in the amount $686,000.00 for the alternative bid response that includes complete demolition of the existing structure and foundation or $771,000.00 for the requested bid response; 3) Approve, amend and approve or reject the contract with selected bidder; 4) Fund $500000.00 from 25272 Pahrump Cemetery and $186,000.00 from a fund determined by the Comptroller; 5) Reject bid and provide direction to staff on how to proceed with the protect.

Commissioner Strickland

made a motion to award Bid No. TOP 2022-02, completion of the Veterans Memorial Building, to Double M Construction in the amount of $686,000.00, approve the contract with that selected bidder, fund $500,000.00 from 25272 Pahrump Cemetery and $186,000.00 from a fund to be determined by the Comptroller; seconded by Commissioner Jabbour.

Commissioner Cox

said she had a problem taking the money from the Pahrump Cemetery to pay for it considering the cemetery needed a lot of work. She asked how much would remain in the fund and would the restrooms be built to be accessible to accommodate the people who went there.

Commissioner Carbone

said that was why this was being done and this was the whole idea of the cemetery budget. September 7, 2022 13. For Possible Action Discussion and deliberation to: 1) Discuss the bid proposals received for Bid No. TOP 2022-02 Completion of Veterans Memorial Building; 2) Award Bid No. TOP 2022-02 Completion of Veterans Memorial Building to Double M Construction in the amount $686,000.00 for the alternative bid response that includes complete demolition of the existing structure and foundation or $771,000.00 for the requested bid response; 3) Approve1 amend and approve or reject the contract with selected bidder; 4) Fund $5001000.00 from 25272 Pahrump Cemetery and $1 86,000 00 from a fund determined by the Comptroller; 5) Reject bid and provide direction to staff on how to proceed with the project-Cont’d.

Commissioner Ccx

wanted doors to the outside for everyone to use the restroom 24/7.

Commissioner Carbone

asked her if she wanted the Board to kill this bid to do that.

Commissioner Cox

said no, just change the bid. Russ Meads explained the design proposed did have an external entrance so the restrooms could be left open, and there was an internal door that could be locked so the remainder of the building was not accessible.

Commissioner Carbone

clarified they would not be open 24 hours.

Commissioner Blundo

made a motion to adopt with an effective date of January 1, 2023; seconded by Commissioner Strickland. September 7, 2022 7. 10:00 a.m. For Possible Action Public Hearing Discussion and — — — deliberation to adopt amend and adopt, or reject Nye County Bill No. 2022-06- Cont’d.

Commissioner Blundo

amended his motion to adopt with an effective date of September 27, 2022; Commissioner Strickland amended her second.

Commissioner Carbone

opened and closed the public hearing.

Commissioner Carbone

opened and closed the public hearing.

Commissioner Bundo

made a motion to adopt with an effective date of September 27, 2022; seconded by Commissioner Strickland; 5 yeas. 11. 10:00 am. For Possible Action Public Hearing Discussion, and — — deliberation to issue an Outdoor Festival License to the Beatty Chamber of Commerce for the Beatty Days Festival 2022 to be held October 28-30, 2022, at 300 W. Amargosa Street, Beatty, Nevada.

Commissioner Carbone

opened and closed the public hearing.

Commissioner Carbone

made a motion to approve; seconded by Commissioner Jabbour; 5 yeas. SITTING AS THE NYE COUNTY BOARD OF HIGHWAY COMMISSIONERS

Commissioner Blundo

assumed the Chair of the Board of Highway Commissioners. 12. For Possible Action Discussion and deliberation regarding General Road Report by Public Works Director on General Road Maintenance, Gravel Road Maintenance, Asphalt Patching, Weed Mowing, and direction regarding public work projects. Tom BoIling provided updates on the on-line requests; the activities of the crews; the projects in the County; and the ongoing flood repairs. September 7, 2022 12. For Possible Action Discussion and deliberation regarding General Road Report by Public Works Director on General Road Maintenance, Gravel Road Maintenance, Asphalt Patching, Weed Mowing, and direction regarding public work prolects-Cont’d.

Commissioner Cox

had a phone number for Mr. Boiling for a person who had complained to her about Wilson and Barney. The person said Public Works moved a road in front of his house for easement purposes. Public Works tore up the road and was refusing to put it back the way it was. The person wanted Public Works to chip seal the damage.

Commissioner Jabbour

said the parking lot at the County Complex looked wonderful, but there was an area in the back that looked like an elephant stepped and picked up part of it, which would only get worse if not addressed. Pat Minshall thought she heard the road from the school to Powerline had been done for two months, but there was no striping. She asked if that would be done this month. Ammie Nelson said a couple of meetings ago she mentioned the corner of Bourbon and Red Butte and how there was always water at that intersection. Since there were nothing but apartments in the whole area she thought maybe it was a water line problem. She asked if they would be responsible in part for the repair or just the reconstruction to fix the water line and help replace the damage at that intersection. Tim Bohannon told the Commissioners to make sure there were no issues in Death Valley like those in Amargosa. There were problems with the connector to Death Valley from Beatty as well. Erika Gerling advised on Friday the town and chamber would have a tour of the damage, and there was a problem with connectivity for people going from Beatty to Death Valley. There was a need there for a travel board for directional information.

Commissioner Carbone

assumed the Chair of the Board of County Commissioners. September 7, 2022 SITTING AS THE BOARD OF COUNTY COMMISSIONERS TIMED ITEMS 8. 10:00 am. For Possible Action Public Hearing Discussion and — — deliberation to adopt, amend and adopt, or reject Nye County Bill No. 2022-07: A Bill proposing to amend Nye County Code Title 17, Comprehensive Land Use Planning and Zoning, Section 17.04.700.A.49, by removing Sexually Oriented Business as an allowed use in the General Commercial (GC) zoning district and adding Sexually Oriented Business as a use allowed in the Light Industrial (LI) zoning district; and providing for the severability, constitutionality and effective date thereof; and other matters properly relating thereto-Reopened. Samantha Tackett asked that item 8 be reopened since the effective date should have been September 26, 2022, as stated on the bill.

Commissioner Blundo

made a motion to rescind the previous motion; seconded by

Commissioner Strickland

; 5 yeas.

Commissioner Blundo

made a motion to adopt with an effective date of September 26, 2022; seconded by Commissioner Strickland; 5 yeas.

Commissioner Blundo

was not present. CLERK 26. For Possible Action Discussion and deliberation to: 1) Appoint one member to the Railroad Valley Advisory Board due to a resignation from the following list of applicants: James Drayton; or 2) Readvertise for the appointment.

Commissioner Jabbour

made a motion to appoint James Drayton for the expired term to end January, 2024; seconded by Commissioner Strickland; 4 yeas. 27. For Possible Action Discussion and deliberation to: 1) Appoint one member to the Smoky Valley Library District due to a resignation from the following list of applicants: Jamie Grimes; or 2) Readvertise for the appointment.

Commissioner Jabbour

made a motion to appoint Jamie Grimes to the library district to the unexpired term to end May, 2024; seconded by Commissioner Strickland; 4 yeas. September 7, 2022 COUNTY MANAGER 28. For Possible Action Discussion and deliberation to approve the election and allocation of funds from the Secure Rural Schools (SRS) Act from the following list of title options: 1) Title I, secure payments for schools and roads; 2) Title II, special projects on federal land; 3) Title Ill, County funds for specific purposes; or 4) Elect a combination of titles as allowable through the conditions of the Act. Natural Resources Director Lorinda Wichman said if the Commissioners did nothing, it would revert to 80% to the roads and 20% to Secure Rural Schools. In the past the roads were bumped up to 85% with 1 5% to Secure Rural Schools and her recommendation was to keep it the same.

Commissioner Strickland

made a motion to select Title I, which would allocate 85% to roads, and Tittle II, which would allocate 15% to SRS; seconded by Commissioner Blundo; 5 yeas. 29. For Possible Action Discussion and deliberation to approve the Memorandum of Understanding (MOU) with the Bureau of Land Management (BLM) establishing Nye County participating as a Cooperating Agency to BLM during the Natural Environmental Policy Act (NEPA) process for renewable energy projects.

Commissioner Blundo

made a motion to approve; seconded by Commissioner Strickland.

Commissioner Carbone

asked who would sit on this. Lorinda Wichman said most likely herself and possibly Megan Labadie. Ammie Nelson said she had been to a few meetings involving the solar farms that BLM was involved with. She was curious if this Natural Environmental Policy Act process for renewable energy projects was the County making a partnership for solar projects in Nye. If so, she knew there would be a lot of unhappy people.

Commissioner Carbone

said this would allow the County to put its feelings on the record.

Mrs. Wichman

added it also kept the County involved in the planning process. John Bosta believed this would give the County the opportunity to ask BLM to reinstate the State of Nevada on their on-line documents. September 7, 2022 29. For Possible Action Discussion and deliberation to approve the Memorandum of Understanding (MOU) with the Bureau of Land Management (BLM) establishing Nye County participating as a Cooperating Agency to BLM during the Natural Environmental Policy Act (NEPA) process for renewable energy projects-Cont’d.

Commissioner Cox

read a statement from Helene Williams asking why this item was under the County Manager since the request was not only for an MOU but also for the Commissioners to appoint a designated representative and an alternative representative, which was not how the agenda item read. It left the appointment to Mrs. Wichman. Ms. Williams felt this item had not been correctly presented to the Board and should be placed on the September 20, 2022, agenda without the appearance of the County Manager sign-off on this item. She asked that her statement be included in the record [see Attachment 3].

Commissioner Carbone

asked if there was any chance the County was violating the Open Meeting Law. Michelle Nelson stated her review showed no legal issues.

Commissioner Cox

suggested putting it off until the next meeting to get the issues reviewed.

Mrs. Wichman

suggested the Board approve this contingent upon Ms. Nelson’s approval when she got a chance to go through it, which Commissioner Cox thought was a very good idea. That would get Mrs. Wichman into one of the meetings and if there was a problem she would leave.

Commissioner Blundo

amended his motion to approve contingent on the District Attorney’s Office’s analysis of what was presented today; Commissioner Strickland amended her second; 5 yeas. 30. For Possible Action Discussion and deliberation to: 1) Consider participating as a Cooperating Agency with the Bureau of Land Management (BLM) during the Natural Environmental Policy Act (NEPA) process for the following projects: Augusta Gold Bullfrog Montgomery project, Anglo Gold N. Bullfrog, Silicon and Mother Lode proiect, Nevada Lithium and Iconic Minerals LTD Bonnie Claire Lithium project, and Coeur’s Crown Exploration Project; and 2) Request two points of contact for the Cooperating Agency (CA) Status from Natural Resources Director, Lorinda Wichman and Beatty Town Advisory Board clerk, Carrie Radomski.

Commissioner Strickland

made a motion to have a cooperative agency agreement with the Bureau of Land Management during the NEPA process as read for each of those entities and the two points of contact as written in the letter; seconded by Commissioner Jab bo u r. September 7, 2022 30. For Possible Action Discussion and deliberation to: 1) Consider participating as a Cooperating Agency with the Bureau of Land Management (BLM) during the Natural Environmental Policy Act (NEPA) process for the following projects: Augusta Gold Bullfrog Montgomery project, Anglo Gold N. Bullfrog, Silicon and Mother Lode project, Nevada Lithium and Iconic Minerals LTD Bonnie Claire Lithium proiect, and Coeur’s Crown Exploration Project; and 2) Request two points of contact for the Cooperating Agency (CA) Status from Natural Resources Director, Lorinda Wichman and Beatty Town Advisory Board clerk, Carrie Radomski-Cont’d. Ammie Nelson hoped whoever was the contact for the different agencies remembered when dealing with lithium that it took 500,000 gallons of water to mine one ton.

Commissioner Blundo

made a motion to approve and ratify; seconded by Commissioner Jabbour.

Commissioner Blundo

amended his motion to approve, ratify, and fund $20,267.00 from 10340 Grants; Commissioner Jabbour amended his second. John Bosta said in the past Emergency Management was not involved in fire protection. He wanted to know who from the fire department would go to the fire show. He also wondered if this would be fire departments from the unincorporated towns because Nye did not have a fire department and Emergency Management did not manage fires. Stephani Elliott said Scott Lewis was the fire chief in Pahrump as well as the lead emergency response planning liaison who originally signed the grant award. He was also the Emergency Management Director for the County. This grant was intended for the fire personnel. Tim Sutton added there was a Nevada Hazardous Material Training conference going on at the same time so it may relate to his duties as Director of Emergency Management as well. September 7, 2022 31. For Possible Action Discussion and deliberation to: 1) Ratify Director of Emergency Management and Chair of the Local Emergency Planning Committee, Scott Lewis’ acceptance of the State of Nevada Emergency Response Commission’s (SERC) Fiscal Year (FY) 2023 Hazardous Materials Emergency Preparedness (HMEP) grant, 22-HMEP-13-01, in the amount of $20,267.00 to attend the Fire Shows West training conference; and 2) Fund $20,267.00 to Grants 10340. There is no county match reguired-Cont’d.

Commissioner Carbone

said there were two ways to do this — keep the current board and create a second one or combine them together. Planning Director Brett Waggoner advised that was already decided by the Board at the July 19, 2022, meeting. The PRPC would be kept for Pahrump and a new planning commission would be created for the other areas of the County. There was discussion at that time on the make-up of the board, but it was not agendized that way, which was the purpose of this item.

Commissioner Strickland

said NACO was pushing a BDR and there would be no reason to form this board if that BDR passed. She wanted to take no action taken on the item and have it heard again later. John Bosta suggested the Board follow something like the water district. At the time he brought the proposal forward he suggested three members from Pahrump, a member from each of the town elected boards, and one member from another unincorporated town area. He felt the Commissioners were doing a disservice to the areas outside of Pahrump by not moving forward on this. Erika Gerling thought if the County waited to see what happened with the BDR it would prevent work being done twice, but she wondered what would happen if that went nowhere. She had given Commissioner Jabbour some suggestions for the County-wide planning committee which she would forward to Mr. Waggoner. Tim Bohannon understood the rationale based on the density of population on trying to push it off, but what kind of changes would need to be made needed to be assessed. Pat Minshall said she would like to see the Board go forward with this and not push it out again. September 7, 2022 32. For Possible Action Discussion, deliberation, and direction to staff regarding the composition of the proposed Nye County Planning Commission pursuant to NRS 278.030-Cont’d.

Commissioner Blundo

made a motion to approve the purchase on 4870 West Bell Vista Avenue, parcel #027-161-08, approve compensation in the amount of the appraisal, $25,000.00, direct staff to prepare and record the documentation necessary to transfer the property, and fund it from 10205 Road Funds; seconded by Commissioner Strickland. John Bosta said he tried to research this issue and could not find the patent for the land on the BLM Web site, and the docket could not be found in the Recorder’s Office on which the patent was subdivided. He thought the Board should look at the original docket to see if the road was dedicated to the County and if the County did not accept the dedication to save $25,000.00.

Commissioner Cox

asked who did the appraisal on the property, the County or a contractor, to which Tom Boiling responded the County appraiser.

Commissioner Blundo

made a motion to adopt; seconded by Commissioner Strickland. Tom BoIling explained this would allow the County to continue with the process if negotiations broke down or if the owner changed their mind. If everyone agreed then this resolution would be rescinded.

Commissioner Cox

pointed out the amount the person was being paid was not included in the resolution. She thought it needed to be put back on with the amount included and then nothing had to be rescinded.

Commissioner Blundo

explained the $25,000.00 price was included in item 35.

Commissioner Cox

pointed out it was not identical to item 35 as there was no acreage listed.

Commissioner Strickland

referred Commissioner Cox to Exhibit A attached to the resolution.

Commissioner Cox

felt since the person agreed this item should be scrapped and come back agendized correctly to avoid potential problems as it had changed since it was put on the agenda by the property owner agreeing to give up the property instead of having the County go to eminent domain. She would rather see it agendized right and asked

Commissioner Blundo

to withdraw his motion.

Commissioner Strickland

said she stood on her second as there was nothing wrong with how it was written. It was reviewed by outside counsel and the District Attorney, and Exhibit A was very specific.

Commissioner Cox

wanted the language regarding eminent domain removed as the person had agreed to the County’s offer. Tim Bohannon knew the intent was to have a contingency plan, but the wording was the County could just take it now and he did not think that was good optics. Knowing there was nothing in it that made it contingent on anything, Commissioner Carbone asked if the motion was acceptable or if it should have contingent language in it. September 7, 2022 36. For Possible Action Discussion and deliberation to adopt, amend and adopt, or reiect Nye County Resolution No. 2022-37-Cont’d.

Ms. Nelson

said an option was to amend and adopt the resolution, so if the Board wanted to make that amendment it could do so.

Commissioner Strickland

stated she still stood by her second.

Commissioner Carbone

thought it should contain language contingent on the payment being made.

Commissioner Blundo

asked if there was enough direction to establish what the Chair just stated. Tim Sutton thought so. Mr. Boiling indicated an agreement was worked out and most likely eminent domain would not have to be exercised at all. John Bosta said the District Attorney pointed out the resolution could be adopted, amended and adopted, or rejected. It seemed to him the resolution could be amended by putting in a statement of the number of acreage and square footage on the property and be passed. He did not understand the reluctance of the Board to follow what

Commissioner Strickland

explained within the body of the resolution it stated Exhibit A, which was more specific and said the exact coordinates from the degrees, minutes and seconds off of the meridian point. She did not know how much more specific a legal document could be than this one.

Commissioner Cox

said it stated this resolution was needed in the event the purchase of the right-of-way did not get completed as intended. She would prefer to do away with this entire item.

Commissioner Blundo

made a motion to adopt: seconded by Commissioner Strickland. September 7, 2022 37. For Possible Action Discussion and deliberation to adopt, amend and adopt, or reiect Nye County Resolution No. 2022-38-Cont’d. Tom Boiling said he had no contact with these people after multiple attempts. They were personally served with this as well as a notice stating this would be on today’s agenda.

Commissioner Blundo

made a motion to reject the bid; seconded by Commissione r Strickland.

Mr. Boiling

said they would wait until next year to re-bid this as they had enough material to last through this winter.

Commissioner Blundo

amended his motion to reject the bid and direct staff to re-bid;

Commissioner Strickland

amended her second; 5 yeas.

Commissioner Blundo

made a motion to approve, execute the letter of agreement, and approve the waiver of GIS program fees in the amount of $1 000.00; seconded by

Commissioner Jabbour

; 5 yeas. September 7, 2022

Commissioner Blundo

made a motion to approve, execute the letter of agreement, and approve the waiver of the GIS program fees in the amount of $4,000.00; seconded by

Commissioner Strickland

; 5 yeas.

Commissioner Blundo

made a motion to approve the purchase in the amount of $283,180.00 and fund it from 10208 RTC; seconded by Commissioner Jabbour. John Koenig said this truck was awesome and would probably do 100 patches a day. He envisioned it rotating between Pah rump, Ama rgosa and Beatty. Pat Minshall asked the Board to absolutely get this. John Bosta thought it was necessary for the County to purchase this truck.

Commissioner Cox

asked if this meant this truck would eliminate the durapatchers being used now. Tom Boiling said it did not and the County would keep those. The one from Pahrump would go to Amargosa while this machine would be used in Pahrump.

Commissioner Cox

said she just did not want to see any of them sitting idle. She asked if the County could get the oil for it now.

Mr. Boiling

advised they were going to find a better source for the oil and not rely on the one source in Las Vegas the County gets it from now. They can get oil from California all year long.

Mr. Jay

also commented that Pahrump residents did not understand what was going on, which Mr. Bohannon felt was quite offensive. Mr. Bohannon then talked about the books written by Robert D. McCracken; the new Love’s going in in Esmeralda County right next to the County buildings in Tonopah; and the Belvada in Tonopah. Pat Minshall said Laura Larsen told her she had donated six big boxes of food as well as canned food for the 300 hundred animals taken. Ms. Minshall encouraged everyone to donate.

Commissioner Ccx

said she received a complaint about Animal Control not taking care of the animals 24/7. People were saying when they called in the evening or night time on an Animal Control issue they were being told there was no one on duty to respond.

Commissioner Cox

believed she spoke with Tim Sutton about this yesterday and hopefully he was looking into it. She also commented she was not seeing any minutes for the County Commission meetings.

Deputy Clerk Kelly

Sidman explained how things in the office stopped when elections occurred and with this election in particular, as well as the length of the meetings lately, it had been difficult to get the minutes done in a timely manner. She was working diligently to get them caught up.

Commissioner Carbone

said he looked into the issue of Animal Control. They had a little bit of a problem with some people, but that had been resolved.

Commissioner Blundo

thanked Mark Kamp for taking on the Commissioners’ request. On August 22, 300 dogs in vile condition and needing medical care were found on Farm Road in Amargosa. Dozens, dozens of puppies were found in a freezer and then the other day reports that numerous dogs had also been buried on the property. It was also stated that the dogs were starving and gobbled down food and immediately vomited it back up because their stomachs couldn’t handle it. In 2010 Platinov was granted approval for 30 dogs, on a property in Pahrump. In 2015, 2017, 2019 he appeared before the BOCC and was denied approval for 150 dogs. Numerous times neighbors near him complained to the BOCC (during public comment) about the kennel, the noise, the smell and the poor care the dogs were receiving. ATTACHMENT 1 April 20,202024 dogs were taken from Platinov in Pahrump. Many were in poor condition, dogs that weigh over I OOlbs only weighed 35lbsl and they were skin and bones. Pahrump didn’t want this kennel with mistreated dogs. In their back yard, so they sent them to our backyard in Amargosa. A report in the PV times said that, animal control helped move the dogs to Amargosa. The county, animal control, the judicial system and the sheriff, let Amargosa down. To allow him to continue in business with the conditions found in 2020 is reprehensible. This is like taking a priest who is sexually abusing children and moving him to another parish. I want all my comments reflected in the minutes. APPUCki1ON N.. 15978 PATENT g, 11031 40 ACRES THE STATE OF NEVADA TO ALL TO WHOM THF PRESENTS SHALL COME, GREEUNG prrii . of • has d rsited with the Register of the State Land Oce at Cerium City, die Stale Trearurer’s receipt. wherroy it appears that full paymant has bean made by the said y t,e ,rcuc; rf an Act of the Legirlalme, egçzoved March l2 1885. anlitled “An ad to provide for the selection rarcE acdr ±cths beenormav hriuterbegeaatedbyd mUnitalStaiastotheSweofNevada,”asdtheAcxs deay thrreof and ..upp!ementary thereto. For the South 1est qut of South West qiarter of Eein :reny—oae (21), Towuthip Seventeen (17) South, Beige Fifty (50) ast, —------—--—. .-.--..-.,.——— ‘--- .- - Moiad Diablo base and mericEan. ‘‘“g Forty acrea. acairdiog to the cthcial p1st of the survey of the PIth& Land,, as made by the United States Suveyor-Csansal for the District of Nevada, which ieid eact las bean medsa,ed by the said x pit Ijrnfnr. kimw gr, Th the State of Nevada, in aimideration of the panaisea. aad in coifoemisy with the Act of the L.egidaiure in suds came made and ptoviuhed. ban givan and gisuted, and by these peesrids doe, give ad game, sate the said Key Pitaert ausd to his Iidra the said tract above deacrd,ed, u Iaur anb in In1I, the same, together witis ali rigiuts. privileges. m...s sad appeuienaces ci whatever nahire thersasuto belonging. auto the said Key Pitlaau and to his hairs sad assigns forever; provided that all mam of geld. ulvu. per. had. iabar and oilier valuable minerals which may exist iii said bud. .rid J rigiut of.,.., (is. dl* hmed-esad-ua..- ceetmeted-by-..,.tL.,.t, f1be Uaited.State,-aye herchy eady.,..,J5 except gas, coal, oil and oil shales (Chap. 172, Slats. 921) 3n høtunmq #1errnf, I. - .7.. B. ‘aT.ai Governor of the State of Nevada, have caused these lette,a to be made Pate,t sod the Great San] of the State to be beseauto axed. Giant racIer my band at Carson City. the day of March i F. B. RAT2.AT1 Governor of Newo4ru. • - By the Governor w. G. GRK&mOUSE T. A. L01’L Seaeiw, of Stale. Stale Land Register. (Endorsed)—Wm PAThNT No. 11031 40 Acres. lamed to y Once of Secretary of Slate, Cesium City. Nevada. March 25th, .19 30 Recorded in Volume 19 55]. c. CIBETHOUSE • at Page Secretary of State. By D. .a e...t .. NEVIDA SlATE liBRARY AND ARCHIVES ARCHNES AND RECORDS Iher,ycevyesatsie ban Usa Otiginal. nri on te aul Of mCusd OnRd Øayol i4 t Jl. J.k BF ATTACHMENT 2 No. 91-1470L (Filed January 29, 2002) ******** ********* ** ** ** **** E. WAYNE RAGE Water Rights; Takings; Jurisdiction; AND THE ESTATE OF JEAN N. RAGE, Surface Rights; Grazing Permits; Plaintiffs, 43 U5.C. § 661; 43 U.S.C. § 946; 43 US.C. 956; 43 U.S.C. §959; V. Ordinance of May 20, 1785; Treaty of Guadalupe-Hidalgo; Desert Lands THE UNITED STATES, Act of 1877; Act of 1888, Act of 1890; Creative Act of 1891; Forest Defendant. Service Organic Act; 43 U.S.C. § 952; 43 US.C. § 292; 43 U.S.C. § 315; ******** ******************* Nev. Rev. Stat. § 533.505(1) Lyman D. Bedford and Michaeli. Van Zandt, McQuaid, Metzler, Bedford & Van Zandt, LLP, of San Francisco, CA, for plaintiffs. DorothyR. Burakreis, with whom was David Shuey, Environment and Natural Resources Division, US. Departmentof Justice, of Washington, D.C.,for defendant. Eric C. Olson, U.S. Department of Agriculture, and John Payne, Regional Office of the Solicitor, U.S. Department of Interior, of San Francisco, CA,of counsel. Johanna H Wald, Natural Resources Defense Council ,of San Francisco, CA, and Professor Joseph Feller, Arizona State University, of Phoenix, AZ, for amid curiae State of Nevada Division of Wildlife, National and Nevada Wildlife Federations, Natural Resources Defense Council ,and Sierra Club. ThomasD. Lustig, with whom was Beth Wendel, of Boulder, CO. for amicus curiae National Wildlife Federation. David Creekman, Deputy Attorney General, State of Nevada, for amicus curiae R. Michael Turnipseed, State Engineer of Nevada. FINAL OPINION: FINDINGS OF FACT SMITH, Senior Judge.’ BACKGROUND Plaintiffs, E. Wayne Hage and the Estate of Jean N. Hage, are the owners of the Pine Creek Ranch in Nyc County, Nevada. In September 1991, plaintiffs filed this claim alleging constitutional ,contractual ,and statutory causes of action.2 In 1996, the court granted in part and denied in part defendant’s Motion for Summary Judgment, hdding that plaintiffs should have the opportunity to prove whether they “own property nghts in the claimed water, ditch rights-of-way and forage and the scope of those rights.” Hage v. United States, 35 Fed. Cl. 147,180(1996) (hereinafter Hage 1). In June 1997, the court granted plaintiffs leave to amend their complaint to include a claim for ownership of the surface estate of approximately 752,000 acres of grazing land on federal allotments. On July 6, 1998, the court stayed defendant’s Motion to Dismiss or Alternatively for Partial Summary Judgment addressing the plaintiffs’ surface estate claim until after a evidentiary hearing on plaintiffs’ property interests. Plaintiffs’ amended complaint alleges a variety of constitutional takings. As in every takings claim, the court must decide: first, do plaintiffs own the property at issue; second, did the government take the property; and if so, what is the “just compensation” due the plaintiffs. The parties have been unable to stipulate to ownership of the property plaintiffs allege defendant took. That necessitated dividing this proceeding into a series of hearings on the different elements of plaintiffs’ claims. This FINAL OPINION: Findings of Fact only addresses the first issue of what property and what water rights plaintiffs owned. The other steps of the takings analysis will be addressed after subsequent proceedings. In October 1998, the court held a two-week trial to resolve whether plaintiffs own the property at issue. A month after the hearing, the court issued a “Preliminary Opinion” to better focus the parties’ post-trial briefing and with the hope of possible settlement. Hage v. United States, 42 Fed. Cl. 249 (1998) (hereinafter Hage III). As dearly indicated by its title, the draft was meant solely as an expression of the court’s initial thoughts, similar to the court’s practice of making closing comments from the Chief Judge Loren A. Smith assumed senior status on July 11,2000. 2SeeHage v. United States, 35 Fed. Cl. 147, 156(1996) (hereinafter Hage 1) (granting and denying in part defendant’s Motion for Summary Judgement); Hage v. United States, 35 Fed. Cl. 737(1996) (hereinafter Hage II) (granting amid status to environmental groups and Nevada state agencies); and Hage v. United States, 42 Fed. Cl. 249(1998) (hereinafter Hage HI) (Preliminary Opinion). 2 bench. This court issued the Preliminary Opinion “to streamline and expedite post- trial briefing.” Id. at 250. It was not meant to be interpreted as a final finding of fact, but merely an expression of the court’s thinking at the time. After a thorough review of the parties’ post-hial briefs and closing arguments, the court now issues this FINAL OPINION defining what property interests the plaintiffs own for purposes of their taking claim. With the publication of this FINAL OPINION in the property phase of this case, the court’s earlier Preliminary Opinion, Hage III, is rescinded except as explicitly reaffirmed herein. INTRODUCTION The property involved in this case is atypical of most takings litigation. It is not land or minerals at a specific time, but rather the usage of water which ebbs and flows throughout the year. The question the court confronted was whether plaintiff had a right to put to beneficial use the water that traveled through certain ditches. The court was not called upon to determine the chain of title or actual ownership of a pond or lake, but a right of usage defined by historical practice. The law is relatively clear that if plaintiffs stopped using the water, they lost the right to the continued use of that water. Indeed, plaintiffs merely own the right to use all the water they can put to beneficial use. The two threshold questions in any takings case are: do plaintiffs “possess a property interest, and if so, what is the proper scope of that interest?” Store &zfe Redlands Assoc. v. United States, 35 Fed. Cl. 726,734(1996). Throughout this case, the government has characterized plaintiffs’ claims as questions of law to which no finding of facts are needed. The court rejected this argument in its 1996 summary judgment opinion, Hage I, and continues to reject it here. Plaintiffs’ case is based on the accepted theory that Western lands are divided into split estates: the federal government retained the mineral iightsand the ranchers owned various swface i-ights such as: water usage, rights toforage,ditch and pipeline rights of way protected and recognized under the Act of July 26, 1866, and right of access to the above, in the form of easements and/or rights of way for their livestock across the lands or mineral estates of the United States. Plaintiffs’ amended complaint raises the following claims: first, that the suspension and cancellation of their grazing permits deprived them of their right to graze their cattle; second, that they were deprived of their water rights when the Forest Service cancelled and suspended their grazing permits and diverted and used 3 the water on those allotments; third, that defendant took their property interest in the ditch rights-of-way by forbidding plaintiffs to access the ditches; fourth, that non indigenous elk consumed forage and drank water reserved for their cattle in violation oftheirproperty right;fifth,that when the Forest Service impounded plaintiffs’ cattle, defendant took plaintiffs’ personal property; sixth, that by canceling and suspending portions of their grazing permit and interfering with their water rigits, ditch rights-of- way, and forage, defendant deprived plaintiffs of all economic use of their ranch; and finally, that they are entitled to compensation for improvements they made to federal rangeland pursuant to 43 U S.C. § 1752(g). This opinion focuses on these seven claims solely to the extent that the claim is contingent upon plaintiffs ownership of property. All other issues whether there was a taking, and if so, what just compensation would be for that taking are — deferred. Based on the evidence presented at trial and a judicial inspection of much of the property in question, this court finds that plaintiffs have established ownership of substantial vested water rights and many Act of 1866 ditch rights-of-way. The court, however, finds that the plaintiffs have shown no evidence and have no legal support to sustain a viable claim for a property interest in grazing permits or a surface estate. Therefore, the court grants defendant’s Motion to Dismiss with regard to the surface estate and grazing permits. DISCUSSION I. JURISDICTION Pursuant to the Tucker Act The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1) (2001). This court has jurisdiction over takings cases where the plaintiff is seeking compensation rather than possession of the land in question. See Bourgeois v. United States, 212 CL Cl 32,35-36(1976) (citing Malone i Bowdoin, 369 U.S. 643,647 a, 8(1962) and Carison & Carison v. United States, 208 Cl. Ct. 1022,1023(1976)). Because this is a suit for just compensation and not “a suit for possession,” it is “within the historical jurisdiction of the court.” Bourgeois, 212 Ct. CL at 35 n.1. 4 ) A. This Court has Jurisdiction because this is not an hi Rem Adjudication In September 1998,immediately before the October 1998 evIdentiary heaiing, the Office of the State Engineer of the State of Nevada filed its final Order of Determination in the ongoing adjudication of water rights in the Southern Monitor Valley.3 Two days later, R. Michael Turnipseed, the State Engineer for Nevada,filed a Petition for Writ of Mandamus or Prohibition to prevent this courtfrom continuing to exercise jurisdiction over the water rights at issue in this matter. The State Engineer argued that under Nevada law, the filing of the Order of Determination commenced the judicial phase of the state adjudication pmcess,and thereby deprived this court ofjurisdiction over the water at issue. See NEV. REV. STAT. 533.165(2001) (“The order of detemunation, when filed with the clerk of the district court as provided in NRS 533.165, shall have the legal effect of a complaint in a civil action.”). The State of Nevada argues that even though the Court of Federal Claims was first in time, Nevada is not prevented from assertingjurisdiction over the water rights adjudication because this court is not proceeding in rem. The State further argues that because it has begun in rem proceedings, this court should halt its consideration of this case because at bottom the same res is at issue. The State, however, misconstrues what the plaintiffs have asked this court to do. Plaintiffs do not seek in rem relief from this court. Instead, plaintiffs seek just compensation for the losses they incurred when, they allege, the government took their property. As this court noted in Hage I, “a title dispute, as part of a taking claim, traditionally does not prevent jurisdiction in this court, assuming jurisdiction otherwise exists. See Oak Forest, Inc. v. United States, 23 Cl. Ct. 90(1991); MKK Corp. v. United States, 15 Ct. 0.538(1988). Moreover, plaintiffs contend that determining title to water is no different than determining title to real property, and the same jurisdictional rules should apply to all forms of property.” Hage Iat 158. Plaintiffs should not be forced to wait for a determination of whether a taking occurred for Fifth Amendment purposes while the state proceeding winds its way through the courts. Water determination cases can take decades to reach a conclusion. For example, in United States v. Alpine Land& Reservoir Co., 697 F.2d 851 (9th Cir. 1983), the quiet title action began in 1925 but was not decided until 1980, a span of 65 years. That case was the “comprehensive adjudication... 3R. Michael Turnipseed, State of Nevada, Office of the State Engineer, Order of Determination in the matter of the determination of the relative tights in and to the waters of Monitor Valley Southern Part (140-B), Nye County, Nevada (Sept. 15, 1998). The state adjudication process began on October 15, l1,when E. Wayne Hage filed a petition requesting a determination of the relative rights of the claimants to the waters of the Meadow Creek, Bailey Creek, Corcoran Creek, Andrews Creek, Pine Creek, Pasco Creek, Mosquito Creek, Barley Creek, and their tributaries, as well as all other waters flowing into or arising in the Southern Monitor Valley. 5 of the rights of all parties to the Carson’s waters,” much like the Order of Determination for the Monitor Valley is a comprehensive determination of the water rights for that area. Id. at 853. In the alternative, Nevada argued that the court should, in deference, stay its proceedings until the completion of the judicial phase of the Nevada adjudication. The Federal Circuit denied Nevada’s Petition because Nevada could not show extraoniinary relief was necessary since it had known this court was exercising jurisdiction for 30 months. In re Turnipseed, 173 F.3d 434, slip op. (Fed. Cir. 1998). At closing arguments Nevada and the government raised these arguments again. In addition, the government renewed its contention that the court need not make any findings of fact in this matter as all of plaintiffs’ claims are questions of law. The government raised a similar point in its Summary Judgment argument, which this court addressed at length in our 1996 Opinion. See Hage fat 159. This court distinguished this case from a water rights adjudication because stream adjudications are “creatures” of state law which the states are best able to determine. However, this court can determine whether plaintiffs have title to water rights without engaging in a stream adjudication. See Hage fat 159, 163k It is also clear that this court can determine title to real property as a preliminary matter when addressing a takings claim. See e.g., Bourgeois v. UnitedStates ,212 Ct. Cl. 32(1976) (stating that \4 In Nevada water rights exist independent of stream adjudication. The Nevada Supreme Court has stated that “[mjost water rights upon the streams of this state are undetennined by any judicial decree or other record. While the right exists, it is undefined. For the state, however, to administer such rights, it is necessary that they should be defined.” Ormsby County v. Kearney, 143 P. 803, 806 (Nev. 1914). Therefore, the Monitor Valley stream adjudication simply defines the parameters of property interests; it does not determine who has title to the water rights at issue. As this court recognized in Hage I “the concurrent adjudication of the Monitor Valley has no bearing on the ripeness of the claims before this Court. To hold otherwise would deny citizens of the United States the protection of the federal Constitution’s guarantees and make those guarantees solely dependent upon state law. Compare In re Slaughter-House Cases, 83 U.S.(16 Wall.) 36(1872) with Allgeyer v. Louisiana, 165 U.S. 578 (1897) and Baker v. Carr, 369 U.S. 186(1962). See also Nollan v. Cal. Coastal Comm.,483 U.S. 825(1987); Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); Dolan v. City of Tigard, 512 U.S. 374(1994).” Hage Iat 163. 6 . in a suit seeking compensation, the court is not denied jurisdiction simply because there is a quiet title issue involved in determining compensation); Yaist v. United States, 228 Ct. Cl. 281 (1981). “Similarly, this court may determine whether plaintiffs have title to a property interest in water as a preliminary matter before addressing whether that property interest has been taken by the government.” Hage Iat 159. Nor do the McCarran Amendment3 or Colorado River Water Conservation District v. United States, 424 U .S. 800(1976), “require that a federal water suit must always be dismissed or stayed in deference to a concurrent and adequate comprehensive state adjudication.” Arizona v. San Carlos Apache Tribe ofAriz. ,463 U.S. 545,569 (1983) reh’g. denied 464 US. 874 (1983). See also Hage Iat 160; Duval Ranching Co. v. Glickman,965 F. Supp. 1427 (D. Nev. 1997) (stating that even where there is an ongoing water rights adjudication, “abstention is always discretionary”); Quackenbush v. Allstate Ins. Co., 517 US. 706,730(1996). B. The Legal Standard in Physical Takings Cases The Supreme Court has made it clear that a “physical taking occurs when the government’s action amounts to a physical occupation or invasion of the property, including the functional equivalent of a ‘practical ouster of [the owner’s] possession.’ Transp. Co. v. Chicago, 99 Us. 635,642(1878); Loretto v. Teleprompter Manhattan CATVCorp.,458 US. 419(1982). When an owner has suffered a physical invasion of his property, courts have noted that ‘no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation.’ Lucas v. S.C. Coastal Council, 505 US. 1003, 1015 (1992).” Tulare Lake Basin Water Storage Dist. v. UnitedStates,49 Fed. Cl. 313,318(2001). First, however, the party seeking compensation must prove they own a compensable property interest. Avenal v. UnitedStates, 33 Fed. Cl. 778,785 (1995). This court has divided this case into two stages. In addition to proving that they have a compensable property interest, plaintiffs must show that the Government physically took their property and that that property had compensable value. The defendant seems to argue that the court should not consider this case because there is no value to any water rights or other property the plaintiffs may have. Valuation, however, is a later step in the takings analysis. The parties will be entitled to put on evidence at that time. The court would note that plaintiffs did, by the undisputed record, run acattle ranch using the water rights in question for some years. This would seem to indicate positive value. If there was value, and the plaintiffs can by a preponderance of the evidence show what that value was, and that the government’s actions amounted to a taking, then the plaintiffs will be entitled to just compensation. \.43 U.S.C. 666. 7 • . II. WATER RIGHTS The court has utilized a three step analysis to determine the water rights at issue in this litigation. First, the court determined what the legal standard is for “vested water rights.” Second, the court determined which of the claimed water rights are “vested water rights.” Finally, the court determined which of those vested water rights qualify as”! 866 ditches.” Fundamentally, “[wihile the owner of a water right has a vested interest in that right, the right itself is something less than the full ownership of property because itis a right not to the corpus of the water but to the use of the water.” Red Cann Sheep Co. V. Ickes, 98 F2d 308,315 (D.C. Ct. App. 1938). We now tend to understand property rights in a more subtle way than in 1938, as evidenced by interests in pension funds, condominiums and numerous financial instruments. A. Vested Water Rights The plaintiffs proved they have vested water tights in the ditches, wells, creeks,and pipelines listed below that cross theirland and grazing areas as well as the Monitor Valley, Ralston, and McKinney allotments. 1. Nevada Law Controls where it is not Superceded by Federal Law. It has long been a principle of water law that state law contiols where it is not directly superceded by federal law. Indeed, it “is settled that the states may prescribe police regulations applicable to public land areas, so long as the regulations are not arbitrary or inconsistent with applicable congressional enactments.” McKelvey v. United Stares 260 US. 353,359(1922); see e.g. Itcaina v. Marble, 55 P.2d 625,630 , (Nev. 1936). In addition, in the 1866 Ditch Rights-of-Way Act, 43 US.CA. § 661 (1999),the Reclamation Actof 1902,43 U.S.C. § 371-390g-8 (2001 ),6and the Taylor 6”Nothing in this act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior. shall proceed in conformity with such laws. . . . 43 U.S.C. § .“ 383. 8 Grazing Act of 1934, 43 U.S.C.A. § 315 (l998), Congress carefully respected the rights that state law recognized prior to passage of the federal laws. For example, the Supreme Court recognized that the Reclamation Act “leaves it to the State to say what rights of an appropriator or riparian owner may subsist along with any federal right.” United States v. Gerlach Live Stock Co. ,339 U.S. 725, 736 n. 7 (1950)8 The Court concluded that Congress “elected to recognize any state-created rights and to take them under its power of eminent domain” with the Reclamation Act. Id. at 739. The Nevada Supreme Court, when examining the intersection of Nevada water law and the Taylor Grazing Act, reiterated that where the federal government has not acted, the state may act. Ansolabehere v. Laborde, 310 P.2d 842,845 (Nev. 1957) (Nevada Stockwatering Act of 1925 superceded where it overlaps with the Taylor Grazing Act). Therefore, federal law directs this court to state law to determine whether or not a water right exists. 2. Vested Water Rights Under Nevada Law Under Nevada law to have a vested water right, the plaintiffs must have the right to “divert water by artificial means for beneficial use from a natural spring or stream.” In re Waters ofDzffCreek, 202 P.2d 535,537 (Nev. 1949). A vested water right becomes “fixed and established either by actual diversion and application to . . . beneficial use or by appropriation .and is a right which is regarded and protected . . as property.” Id Appropriation of the water occurs when actual “acquisition from the government by diversion and use” is made by a party. Id at 538; see also Walsh v. Wallace ,67 P. 914,917 (Nev. 1901) (“To constitute a valid appropriation of water there must be an actual diversion of it, with intent to apply it to a beneficial use, followed by an application to such use in a reasonable time.”); Rena Smelting Works v. Stevenson, 21 P.317 (Nev. 1889). Therefore,for an appropriation to occur, “there must co-exist ‘the intent to take, accompanied by some open, physical demonstration of the intent, and for some valuable use’.. The outward manifestation is most often . evidenced by a diversion of the water from its natural source prior to the use; but . . . it also can be evidenced in other ways, for example.. by watering livestock directly . 7”Nothing in this subchapter shall be construed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands.. 43 U.S.C.A. § 315(1998). The Taylor Grazing Act had two .“ purposes: 1)toprovideforthebestuseofthepublicrangeand2)todefinetherightsofstock grazers and protect them from interference. SeeRed Canyon Sheep Co. V. Ickes,98 F.2d 308, 314 (D.C. Ct. App. 1938). 8 It is important to note that Nevada uses a system of appropriation rather than riparian water use as do most Western states. In Bergman v. Kearney, 241 F. 884(D. Nev. 1917), the district court stated clearly that riparian rights had “no place in the law of Nevada.” Id. at 893. In addition, the court recognized that, “[wiater is not capable of permanent private ownership; it is the use of water which the state permits the individual to appropriate.” Id. 9 . . from the source.” Hunter v. United States, 388 F.2d 148, 153 (S.D. Cal. 1967) (Citations omitted). The Nevada Supreme Court has recognized that though the manner of acquiring the water from the government may change as the law changes, “the character of” appropriation “remains, as ever, an acquisition of a right to use water from the government.” In re Waters ofDuff Creek, 202 P.2d at 537. Nevertheless, the use of the water cannot include any waste or be unreasonable, United States v. Alpine Land & Reservoir Co., 697 F.2d 851, 854 (9th Cir. 1983), and one who appropriated a right to use the water can lose that right by voluntarily abandoning it. See In re Manse Spring, 108 P.2d 311,315 (Nev. 1940). 3. The Hages’ Water Rights The court now turns its attention to whether plaintiffs have proven they acquired vested water rights in any of the claimed water sources. In reaching the following determinations, the court has relied heavily on the evidence presented at trial through expert testimony and exhibits. The parties are to be commended for the quality of the evidence they presented at trial. a. Monitor Valley Water Rights As this court noted in its Preliminary Opinion, the court finds the Order of Determination of the Nevada State Engineer9 compelling and “incorporates by 91n Nevada,the slate engineer has been tasked with determining whoowns rights to the water within the state. In Bergman v. Kearney, 241 F. 884 (D. Nev. 1917), the district court outlined the multiple steps that the state engineer must take to make a determination. The engineer must investigate the flow of the stream, the diverting ditches, the lands irrigated, make surveys and prepare maps showing the course of the stream, the location of each ditch or canal,the area, outline and character of culture of each parcel of land upon which the water of the stream has been used, and gather such other data and information as may be essential to a proper determination of water rights in the stream. Bergman, 241 F. at 884 referencing 20-21 of the Nevada Water Law of 1913 (currently NEV. REV. STAT. 533.100 & 533.105 (2001)). All interested parties are then given an opportunity to file proofs of their ownership of the water. The State Engineer collects, prints, and distributes the proofs to all interested parties. Those parties may contest the proof in writing before the State Engineer issues his Order of Determination. The Order of Determination when filed becomes the equivalent of a complaint in the Nevada district court where the water is located. The court recognizes there is an on-going state adjudication where both parties had an opportunity to present evidence about who owns the water in question. On October 15, 1981, the Hages filed a petition with the State Engineer requesting a determination of (continued...) I0 reference the findings of ownership contained at pages 130-172 of the State Engineer’s report on the Southern Monitor Valley.” Hage III at 250. This court’s conclusions regarding the Southern Monitor Valley, however, are based upon the strength of the Engineer’s testimony and report, not on legal deference, since this factual issue is considered de novo. It is also based on this court’s own review of the evidence and testimony presented at trial. Plaintiffs introduced the State Engineer’s Order of Determination, and then the State Engineer, Mr. R. Michael Turnipseed, testified about the examinations his office made of the sites in question prior to issuing the determination. In addition, the court made a site visit to many of the locations of the streams and ditches in question. As in every trial, the court must determine what the facts are, often adopting the evidence of one party or the opinion of one expert witness. Due to the specific nature of the property rights at stake, the type of measurements involved in accurately describing water rights, and the court’s acknowledgment of the Nevada Slate Engineer’s expertise in mapping such rights, the court incorporates the State Engineer’s descriptions of the property for accuracy and clarity.’0 This court finds that plai ntiffs showed by a preponderance of the evidence that the plaintiffs and their predecessors appropriated and maintained a vested water right in the following bodies of water in the Southern Monitor Valley. In addition to certificates of appropriation that were entered into evidence, the plaintiffs also submitted an exhaustive chain of title which showed that the plaintiffs and their (...continued) ownership rights of various bodies of waters within the Monitor Valley B Southern Portion. R. Michael Tumipseed, State of Nevada, Office of the State Engineer, Order of Determination in the matter of the determination of the relative rights in and to the waters of Monitor Valley B Southern Part (140-B), Nye County, Nevada at I (Sept. 15,1998). The State Engineer accepted the petition on June 15,1 982,and began taking proofs of ownership that fall. Id. at 2. The filing (Continued. .) (. Coat. 9) . . . deadline for the proofs was extended repeatedly to February 28, 1994. Id. at 4. Field investigations were conducted the summers of 1994 and 1995 with a preliminary order of determination being issued on February 15, 1996. During the field investigations, the State Engineer and his staff measured the streams and their basins and the water flow rate in cubic feet per second. See Id. at 7-12. They also analyzed whether the stieanLs would meet the crop water needs during the summer and when the streams would dry up. See Id. After receiving objections to the preliminary order, the final order was issued on September 15,1998, immediately prior to the ongnal trial in this case. A bench trial was held before the Nye County District Court on November 1,2001. \j.Q The pages of the report referred to here (pages 130-172) are appended to this FINAL OPINION. 11 • . predecessors-in-interest had title to the fee lands where the following springs and creeks are ocaed” • Andrews CreeA which was appropriated with a piionty date of 1874,12 • Barley Creek, which was appropriated with priority dates of 1874 and 1915, • Combination Springs, which was appropriated with a priority date of 1866, • Meadow Canyon Creek, which was appropriated with priority dates of 1874 and 1911, • Mosquito Creek, which was appropriated with priority dates of 1874 and 1917, • Pasco Creek, which was appropriated with priority dates of 1869and 1911, • Pine Creek, which was appropriated with priority dates of 1874and 1972, • Smith Creek, which was appropriated with a priority date of 1874, and • H7zite Sage Ditch, which was appropriated with a priority date of 1878. b. Ralston and McKinney Mlotments \jj. Explicit boundaries and dimensions of the plaintiffs’ Monitor Valley property interests are detailed in Appendix A. \12 The plaintiffs proved that some of these bodies of water are also 1866 ditches. To find that an 1866 Ditch exists, the plaintiff had to prove at trial that the ditch was in place prior to 1907 when the Toiyabe National Forest was created by President Theodore Roosevelt. See Hage I at 161; see also Proclamation dated April 15, 1907. The priority appropriation dates establish how far back in time the State Engineer was able to trace the water’s ownership rights through the plaintiffs’ predecessors in interest. 12 0 This court finds that plaintiffs presented evidence at trial that showed by the preponderance of evidence that the plaintiffs and their predecessors appropriated and maintained a vested water right in the following bodies of water on the Ralston and McKinney allotments. In addition to certificates of appropriation that were entered into evidence,the plaintiffs also submitted an exhaustive chain of thie which showed that the plaintiffs and their predecessors—in-interest had title to the fee lands where the following springs and creeks are located. 1. Ralston Mlotments The plaintiffs have a vested water right to the following bodies of water in the Ralston allotment based either on the date of appropriation or prior beneficial use of their predecessors-in-interest AEC Well: The state engineer issued a certificate of appropriation to plaintiffs with a priority date of December26, 1980. • Airport Well: The state engineer issued a certificate of appropriation to plaintiffs with a priority date of March 19, 1981. • Baxter Spring: The state engineer issued a certificate of appropriation to United Cattle and Packing Company, a predecessor in interest of the plaintiffs, with a priority date of October 5, 1917. • Black Rock Well: The state engineer issued a certificate of appropriation to plaintiffs with a priority date of July23, 1982. • Cornell Well: The state engineer issued a certificate of appropriation to plaintiffs with a priority date of December 26, 1980. • Frazier Spring: The state engineer issued a certificate of appropriation to United Cattle and Packing Company with a priority date of February 17, 1927. • Henry’s Well: The state engineer issued a certificate of appropriation to plaintiffs with a priority date of April 27, 1981. 13 . • Humphrey Spring The state engineer issued a certificate of appropriation to United Cattle and Packing Company with a priority date of December 17,1917. • Pine Creek Well: The state engineer issued a certificate of appropnation to Fiank Arculaiius with a priority date of January 11, 1950. • Ray’s Well: The state engineer issued a certificate of appropriation to United Cattle and Packing Company with a priority date of February 17, 1927. • Rye Patch Channel: The state engineer issued a certificate of appropriation to Frank Arcularius, a predecessor in interest of the plaintiffs, with a priority date of November 12, 1926. • &mlsbury Well: The state engineer issued a certificate of appropriation to plaintiffs with a priority date of April 27, 1981. • Silver Creek Well: The state engineer issued a certificate of appropnation to Frank Atcularius with a priority date of February 10, 1950. • Snow Bird Spring The state engineer issued a certificate of appropriation to United Cattle and Packing Company with a priority date of June 7,1918. • Spanish Spring The state engineer issued a certificate of appropriation to United Cattle and Packing Company with a priority date of December 17,1917. • Stewart Spring The state engineer issued a certificate of appropriation to Mrs. 0. C. Stewart, a predecessor in interest of the plaintiffs, with a priority date of November25, 1931. • Well No. 2: The state engineer issued a certificate of appropriation to plaintiffs with a priontydate of December26, 1980. • Well No. 3: The state engineer issued a certificate of appropriation to plaintiffs with a prioritydate of December26, 1980. 14 • . 2. McKinney Allotment The plaintiffs have a vested water right to the following bodies of water in the McKinney allotment based either on the date of appropriation or prior beneficial use of their predecessors-in-interest • Caine Springs: The state engineer issued a certificate of appropriation to Mrs. Milo A. Caine,a predecessor in interest of the plaintiffs, with a priority date of October 8, 1919. • Cedar Corral Springs: The state engineer issued a certificate of appropriation to Milo A. Caine with a priority date of Februaiy 10,1920. • Mud Springs: The state engineer issued a certificate of appropriation to Milo A.Caine, apredecessorin interest of the plaintiffs, with a priority date of October 8, 1919. • Perotte Springs: The state engineer issued a certificate of appropriation to Milo A. Caine with a priority dateof February 10, 1920. B. Ditch Rights-of-Way and Forage Rights Next, the court turns its attention to whether those water rights have accompanying ditch rights-of-way and forage rights. The plaintiffs claim that the government took their property when it prevented them access to their 1866 Act ditches.’3 1. Determining whether a Ditch Right-of-Way existei \U This is a physical takings claim because plaintiffs argue the government has physically barred them from the land, with threat of prosecution for trespassing if they enter federal lands to maintain their ditches. This is not an idle threat, because the government unsuccessfully prosecuted Mr. Hage for maintaining the White Sage Ditch. The government obtained a criminal conviction against Mr. Hage that was overturned by the Ninth Circuit Court of Appeals. See United Statesv. Seaman, 18 F.3d 649(1994). 15 The court has developed a three-step analysis to determine whether plaintiffs have a ditch right of way. First, the court must determine whether plaintiffs own 1866 Act Ditches. Second, the court must examine the proof submitted for each ditch to determine whether the ditch was established prior to 1907, when the land the ditches are on became part of the Toiyabe National Forest Reserve. Finally, the court must determine the extent of the right of way. In its Preliminary Opinion, the court found that the Hages were entitled to ditch rights-of-way equal to 50 feet on each side of the ditches or canals they own underSection 9of the ActofJuly 26,1866,43 U.S.C. § 661. See Hage 111 at 250-51. Under a common sense analysis, the court also found “that implicit in a vested water right based on putting water to beneficial use for livestock purposes was the appurtenant right for those livestock to graze alongside the water.” Hage 111 at 251. At trial and in post-trial briefing, the government has opposed the plaintiffs’ ownership claims under the Act of 1866 as unripe because plaintiffs failed to seek a regulatory determination that the ditches were subject to the Act and never sought a USFS special maintenance permit when engaged in clearing and cleaning work close to the outer limits of the claimed right-of-way. Alternatively, defendant contended that the right-of-way is much more limited than the scope recognized by the court. Defendant and amid challenged plaintiffs’ entitlement to forage rights surrounding the 1866 ditches, arguing that Nevada law does not recognize forage rights as a component of water rights. Many statutes with similar purposes to the 1866 Act incorporate a consistent 50 foot right-of-way for ditches. See Act of 1891,43 U.S.C. § 946; Act of 1895,43 U.S.C. § 956; and Act of 1901,43 U.S.C. § 959. In addition, there was undisputed testimony at trial about the historic use of these ditches for livestock watering and irrigation. There was also persuasive testimony about the intent of Congress when it passed these acts. Specifically, the United States intended to “respect and protect the historic and customary usage of the range.” See Hage III at 251. Upon careful consideration of the trial evidence and evaluation of applicable law, the court reaffirms its findings regarding ditch rights-of-way and the forage rights. 2. The 1866 Ditch Rights-of-Way Act In the Ditch Rights-of-Way Act, Congress chose not to enact detailed dimensions of ditch rights-of-way. lnstead,Congress expressly deferred to state and local custom and usage: Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and 16 . the decisions ofcourts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed... 43 U.S.C. § 661 (1866) (emphasis added). Under the 1866 Act, Congress explicitly drafted the statute to leave local definitions of water and ditch rights in place. The Act’s legislative history shows that Congress believed that Western water and easements law generally allowed a right-of way for 50 feet on both sides of a ditch.’4 The Act of 1866 was introduced in the Thirty-Ninth Congress on March 8, 1866, as “an act granting the right of way to ditch and canal owners in the State of California over public lands.” 1866 Cong. Globe 1259. The floor debates in the House and Senate contain a detailed discussion of the 50 foot-long rights of way. The version reported out of the Committee on Mines and Mining by the Chairman and original sponsor, Representative William Higbyof California, provided that under the first section: the owners of ditches, flumes, canals, or aqueducts for mining, mechanical, or agricultural purposes, shall have the right of way over the public lands.. so long as those works are to be used for said purpose. The second section provide[d] that in order to give free access to such canals,flumes, and ditches, for the purpose of repairs and constniction, the owners of the same are granted the use and occupation of a strip of land on each side of their respective works three rods’5 in width. l866Cong.Globe 3141 (June 13). The House Committee recommended several amendments to the original language, one of which read: “Amend the second section by striking out the words ‘canals, flumes, and ditches’ and inserting in lieu thereof the words ‘ditch, flume, canal, or aqueduct,’ also by striking out the words ‘three rods in width’ and inserting ‘fifty feet in width.” 1866 Cong. Globe 3141 (June 13). The House agreed to the amendment, and on Representative Higby’s motion the bill was extended to include Nevada and Oregon in addition to California. In his floor remarks, Congressman \j4 Indeed, when asked at trial why he allowed Mr. Seamun to clear trees from 50 feet on each side of the White Sage Ditch, Mr. Hage stated it was because the 1866 Act did not clearly delineate the distance but all other laws from that time allowed a fifty foot area on each side of a ditch. 15Three rods is the equivalent of 49.5 feet. See WEBsTm’s NINTh NEw CounoIAm DICrIONARY 1020, 1338(1984). 17 Higby explained that the 50-foot ditch right-of-way was simply a codification of pertinent state and local law in the Pacific States: “We propose, in the bill as amended, that they shall have the right of way as they now have, respecting at the same time the rights of possession as established by the laws of the State.” 1866 Cong. Globe 3141 (June 13).16 The dimensions used in the House’s version of the bill demonstrate Congress understood and accepted the local law and custom when it drafted, debated, and passed the 1866 Act. At the same time, the amended House version also conditioned the duration of the estate in water and ditch rights on the use of the rights for mining,agricultural, and other purposes specified in the legislation.’7 See 1866 Cong. Globe 3141 (June 13). Representative Higby likewiseconfirmed this limitation on the Housefloor”that the right of way shall be guaranteed by the General Government so long as these ditches, [etc.j, shall be used for the purposes named in the bill.” id. In the Senate, Senator William Moms Stewart of Nevada introduced a substitute amendment that removed limitations on titles to mining, water, and ditch rights. See 1866 Cong. Globe 3228 (June 18). Unlike its House counterpart, the Senate bill contained no dimensions for the right of ways; it was ultimately enacted into law. The Senate’s Amendment acknowledged the rights recognized under state and local law like the amended House bill. See, e.g., 1866 Cong. Globe 3227 (June 18).’ Because the legislative intent behind the rights-of-way provisions was to honor the scope of property rights as defined by their independent sources,Congress’ failure to incorporate the 50-foot limitation did not alter the fifty foot scope.’9 \J The Act of 1866 was not the only law to recognize 50 feet rights of way for the purposes of maintaining and operating irrigation ditches and canals. See Act of March 3, 1891, 26 Stat. 1095 § 18. The Livestock Reservoir Siting Act of 1891 recognized rights-of-way for up to 160 acres. See discussion infra. 17Providea That the possessory rights of others to public lands adjoining such ditch, flume, canal, or aqueduct, previously acquired under the law of the State or of the United States shall not be disturbed by the passage of this act And providedfurther, that the use and occupation hereby granted shall be for the purpose named and no other.” 1866 Cong. Globe 3141 (June 13). 18 “It furnishes the means to actual settlers of acquiring title to their homesteads by segregating the agricultural from the mineral lands, and confirms the rights to the use of water and the right of way for ditches as established by local law and decisions of the court. In short, it proposes no new system, but sanctions, regulates, and confirms a system to which the people are devoutly attached, and removes a cloud of doubt and uncertainty . 1866 . .“ Cong. Globe 3227 (June 18). ‘9I’his falls within a well-recognized exception to the rejection of amendments,namely, that amendments may be rejected because the bill already includes those provisions.” See SIrrI-IERLAND STAT. CONST. § 48:18. As a matter of property rights law, this conclusion (continued...) 18 . . Defining ditch rights-of-way in afederal statute would be redundant where the statute incorporates the definition of these rights under non-federal law. The legislative intent of incorporation is clear, and therefore, the Act of 1866 must be interpreted to allow for ditch rights-of-way of 50 feet on each side of a ditch. As the Supreme Court recognized in Jennison v. Kirk, 98 Us. 453(1878), the purpose of the 1866 Act was to “give the sanction of the United States, the proprietor of the lands, to possessoiy rights, which had previously rested solely upon the local customs, laws, and decisions of the courts, and to prevent such rights from being lost on a sale of the lands.” Jennison, 98 U.S. at 457. See also Hunter v. United Stares, 388 F.2d 148, 151 and n. 6(1967). The Supreme Court interpreted the Act to say that: whenever rights to the use of water by priority of possession had become vested, and were recognized by the local customs, laws, and decisions of the courts, the owners and possessors should be protected in them; and that the right of way for ditches and canals incident to such water-rights, being recognized in the same manner, should be ‘acknowledged and confirmed.’ Jennison, 98 U.S. at 460. The Supreme Court also held that the 1866 Act was a “voluntary recognition ofapre-existingrightofpossession, constituting a valid claim to its continued use, [rather] than the establishment of a new one.” Broder v. Natoma Water & Mining Co., 101 US. 274,276(1879) (emphasis in original). The Court has also established the principle that states may determine the rights of an appropriator of water and how that right interacts with federal rights to water. United States v. Gerlach Live Stock Co., 339 U.S. 725,734(1950). 3. Establishing a 1866 Act Ditch and Right-of-way. Plaintiffs must demonstrate that their predecessors-in-interest of the various paitels of land that constitute Pine Creek Ranch (at the time of the alleged taking) established and used the 1866 Act ditches prior to 1907 when the land was removed from the public domain and became partof the Toiyabe National Forest Reserve. See Hage Iat 161. They must also show that the rights-of-way have been maintained and the ditches have been used since 1907. (...continued) should not be surprising in light of the Supreme Court’s long-standing recognition that these rights are usually defined by state law and other sources independent of federal protections for private property. See, e.g., Bd. of Regents v. Roth, 408 US. 564(1972) (due process protection). 19 . kM Plaintiffs proved that only a subset of their vested water rights actually constitute 1866 Act Ditches. At trial plaintiff presented evidence the court found persuasive that the following ditches are 1866 Act Ditches: • Andrew’s Creek Ditch was built in May 1876 and entered into the survey books of Nye County on June 30,1876. The defendant admits that the Andrews Creek Ditch is an 1866 Ditch. • Barley CreekDitch was appropriated to a Hage predecessor in interest by the Nevada State Engineer in 1915 and evidence was presented that the ditch and extension ditch existed prior to 1877. • Borrego Ditches The easement to this ditch dates to 1866. • Combination Pipeline was built by the BLM in 1965 on an easement from Frank Arcularius. The title records show that the land Mr. Arcularius owned had the vested water rights to all water on the land since 1870, and plaintiffs proved the easement dates back to 1866. • Corcoran Ditch was constructed between 1880 and 1889, with the proof of appropriation filed on September 28, 1912. • Meadow Creek Diich: The Meadow Canyon Creek and its tributaries have been in the possession of the Hages and their predecessors in interest since at least 1902, and probably 1868. The Ditch was constructed between 1902 and 1912. While the State Engineer’s office recommended that the ditch be considered abandoned on March 8, 1996, the court saw evidence of the ditch during its site visit in 1998. • Pasco or Tucker Ditch was built in 1869 and expanded in 1878. • Pine Creek Irrigating Ditch was built and registered by Mr. E.H. Kincaid, a predecessor-in-interest of the plaintiffs, on April 29,1876. • The Spanish Spring Pipeline was built in 1959 but plaintiffs’ predecessors-in-interest acquired a vested interest to the water in 1870. • White Sage Irrigation Ditch was recorded by the Nye County Clerk at the request of E.H. Kincaid on April 29,1878, and built that summer. The White Sage Irrigation Ditch was part of the Certificate of 20 ( Appropriation granted to the Nyc County Land & livestock Company by the Nevada State Engineer’s Office on April 20, 1914. The defendant argues that only Andrew’s Ditch is ant 866 Act Ditch, because none of the others can be definitively proved to be in their original ditch beds. The court examined many of these ditches during a site visit. The site visits made it clear that the ditches while maintained by the owners are subject to floods, wash outs — — and other forces of nature2° Therefore, it would be an unreasonable burden to require the plaintiffs to prove that all the ditches were in their exact points of departures and beds as they were when built in the late 1800s. The court finds, however, that plaintiffs failed to meet their burden of proof that the following were actually 1866 Act Ditches. • Baxter Spring Pipeline: Plaintiffs claim the pipeline easement dates back to 1870. Nevada State Engineer issued a Certificate of Appropriation to the Hages’ predecessor in interest with a date of priority of October 5, 1917. The Pipeline was built in 1956 and extended in 1963. • Corcoran Pipeline was completed in 1965 by a Hage predecessor. • Desert Entry Ditch: Plaintiffs rely on two exhibits the Defendant submitted at trial. Both are applications for Special Use permits: one states that a ditch existed in 1973 and the other states the Hages’ intent to maintain it. There is no evidence of when the ditch was created,but plaintiffs claim the easement was created in 1973. • Hot Well Duck The easement to this ditch dates to 1968,61 years after the Toiyabe Forest was reserved from the public domain. • The Mount Jefferson Spring and Pipeline were installed in 1973 by theBLM. • The Salisbury Well Pipeline was created in 1966 at the request of Frank Arcularius. Thus, the courtfinds that it must uphold in part and reject in part the plaintiffs’ claims 1866 Act Ditch rights-of-way. to \2Q Including an ill-fated insertion of beavers by the Forest Service in the late 1944Ys through the early 1950s. 21 C. Vested Rights-of-Way may be subject to Reasonable Regulation where they run across Federal Land. Because the Hages’ have vested rights of way under the 1866 Act, this court must then address their contention that they are not subject to Forest Service regulations. As the District Court in Nevada recognized, “a vested right-of-way which runs across Forest Service lands is nevertheless subject to reasonable Forest Service regulation, where ‘reasonable’ regulation is defined as regulation which neither prohibits the ranchers from exercising their vested rights nor limits their exercises of those rights so severely as to amount to a prohibition.” Elko County Bd ofSupervisors v. Glickman, 909 F. Supp. 759,764 (D. Nev. 1995). Under the 1866 Act,vested ditch rights-of-way are subject to Forest Service regulations, including the need to obtain special use permits when necessary. See 43 U.S.C. § 1761(b)(3) and Part 2800. According to the defendants, normal maintenance includes minor trimming and clearing of vegetation around the ditches. The defendants argue that any other maintenance can only be done after a special use permit is obtained from the Forest Service. See 43 C.F.R. § 2801 .1-1. The government cannot deny plaintiffs access to their vested water rights without providing a way for them to divert that water to another beneficial purpose if one exists. The government cannot cancel a grazing permit and then prohibit the plaintiffs from accessing the water to redirect it to another place of valid beneficial use. The plaintiffs have a right to go onto the land and divert the water. Whether the requirement of a special use permit to maintain a ditch right-of- way is a taking is a question this court can most appropriately answer in the takings phase of this case,which the court addresses in the Next Steps section of this FINAL OPINION: Findings of Fact. D. The Forest Service Manual does not have the Force of Law The government’s federal law argument does not squarely resolve the interpretive problems with the statute at issue. Instead, the government directs the court to look at the USFS Manual as an authoritative pronouncement on the scope of the right-of-way easement rather than at the 1866 Act. The government contends that \2..[ Yet Mr. Hage was found guilty by the U.S. District Court for Nevada for doing just that: allowing an employee to cut trees from a 50 foot section alongside each side of an 1866 Ditch as he maintained it. As

Mr. Hage

testified at trial, he reached the 50 foot number by a common sense analysis of the laws that he was told would apply to the ditches. His conviction was overturned by the Ninth Circuit Court of Appeals. See United States v. Seaman. 18 F.3d 649(1994). At trial the government did not dispute that the pinions and junipers cut were trash trees. 22 plaintiffs should be denied the 50-foot rights-of-way because Mr. Hage exceeded the dimensions appropriate for normal, reasonable maintenance as defined under the Manual and the Forest Service practice. This contention must be rejected for the simple reason that the Forest Service Manual does not have the force of law. It can not alter a statutory right. Indeed, the Supreme Court stated this principle quite clearly a year ago in Christensen v. Harris County, 529 US. 576 (2000), where the Court stated that “[ilnterpretations such as those in opinion letters like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force oflaw do not warrant Chevron-style deference” Christensen; 529 US. at 587 (emphasis added). The Manual was created to guide Forest Service personnel,not to govern private citizens in the exercise of their rights. See W. Radio Serv. Co. v. Espy, 79 F.3d 896,901 (9th Cir. 1996) (“Manual and Handbook do not have the independent force and effect of law.”) Such agency pronouncements on the statutes are merely The Ninth Circuit’s manifold reasons in Western Radio Services Company which — includes references to binding Federal Circuit precedent refute the government’s theory and are worth quoting here: First, the Manual and Handbook are not substantive in nature. In United States v. Doremus, 888 F.2d 630,633 n. 3 (9th Cir. 1989), cert. denied,498 U.S. 1046(1991), we explained in dictum that “the Forest Service Manual merely establishes guidelines for the exercise of the Service’s prosecutorial discretion; it does not act as a binding limitation on the Service’s authority.” See also Stone Forest Indus. v. United States, 973 F2d 1548, 1551 (Fed. Cir. 1992) (Manual does not have force and effect of law); Lumber, Prod and Indus. Workers Log Scalers Local 2058 v. United States, 580 F. Supp. 279,283 (D. Or. 1984) (Manual is “basically a large compilation of guidelines. [and] not a . . ‘subtantive’ rule” (internal quotations and citations omitted)). The Manual and Handbook are a series of “[pirocedures for the conduct of Forest Service activities.” 36 C.F.R. § 200.4(b), (cXl) (1995). The Manual and Handbook are not promulgated in accordance with the procedural requirements of the Administrative Procedure Act. Neither is published in the Federal Register or the Code of Federal Regulations. See Parker v United States, 448 F.2d 793,797(10th Cir. 1971), cert. denied, 405 U S. 989 (1972). They are not subjected to notice and comment rulemaking; they are not regulations. HiRidge Lumber Co. v. United States, 443 F.2d 452,455 (9th Cir. 1971) (Manual “does not rise to the status of a regulation”). Nor are the Manual and Handbook promulgated pursuant to an independent congressional authority. The National Forest Management Act authorizes the Secretary to (Cont. 22) promulgate regulations, but the Manual and the Handbook are not regulations fmm the Secretary. 36 C.F.R. § 200.4(dXl) (1995) (Chief of Forest Service (continued...) 23 . “entitled to respect’ under [the Supreme Court’s] decision in Skidmore v. Swift & Co., but only to the extent that those interpretations have the ‘power to persuade.” Christensen, 529 U.S. at 587 (citation omitted). Although the Preliminary Opinion found persuasive the Manual’s position that determining the scope of rights-of-way requires a factual inquiry, see Hage HI, the substantive provisions and Forest Service practices regarding the scope of the rights- of-way work no such persuasive effect. The Forest Service is without authority to adjudicate title to rights-of-way under the 1866 Act, and maintenance permitting for ditches has no adjudicatory implications for these rights. Permitting decisions by Forest Service rangers in Nevada do not create some kind of ditch common law, as the government implies. The legal questions regarding the scope of the Act of 1866 rights are the province of the judiciary, not the Forest Service field personnel. The Government emphasizes that plaintiffs did not confirm with the Forest Service that any of the ditches were 1866 Act ditches and did not seek authorization to maintain those ditches. However, there is no requirement under the law to seek permission to maintain an 1866 Ditch. Instead, that right is expressly reserved in the 1866 Act. 43 U .S.C. § 661. The government also argues thatafifty-foot right-of-way on either side of the ditches is unreasonable under the local maintenance and construction practices and the needs of the Hages and their predecessors in interest. Further, the government argued that the scope of the rights-of-way is a matter of federal law. See United States v. Oregon, 295 U.S. 1, 27-28 (1935) and Adams v. United States, 3 F.3d 1254, 1260 (9th Cir. 1993). The legislative history,as explored above, makes it clear that Congress intended to give those with 1866 Act ditches access to those ditches for construction and maintenance. Anything less might make those same ditches wortffless? The RIM and Forest Service can attcmpt to place right-of-way restrictions on ranchers, but it will be next to impossible to enforce those against cattle. Ranchers let cattle drink straight from streams rather than build diversions for pragmatic, economic reasons: “[T]he owner cannot make cattle drink; if he built the most expensive pipe conceivable and the most beautiful trough that human ingenuity and skill could produce, for the cattle to drink out of, there would be no way of (...continued) promulgates rules in Manual and Handbook). The Manual and Handbook provisions are contemplated in a Service regulation, not in a congressional statute. W. Radio Serv. Co., 79 F.3d at 901. \2 See CUR’rls H. LINDLEY, A TREATISE ON THE AMERICAN LAW RELATINGTO MINES ANt) MINERALLANDS § 530 vol. II (3d ed. 1988). 24 . . compelling the cattle to drink out of the trough, instead of out of a puddle made by the overflow from the trough. No doubt it was this consideration which led the hardy and practical live stock men of a half a centuly ago to adopt the well and widely established custom which the court found to prevail.” Steptoe Livestock Co. v. Gulley, 295 P.772,776 (Nev. 1931). While the BLM might commission a genetically engineered cow that will drink only where preprogrammed, until then it is highly unlikely that you will be able to make a cow differentiate between water they can drink because it is on base property and water that it is attached to public land. For centuries, no one has been able to lead the cow without it drinking at will. In a sense, the point of use for the water is the cow’s head, which is an extension of the base ranch. Therefore, for the reasons stated the court upholds in part and denies in part the plaintiffs’ claims to three kinds of property: 1) vested water rights in the Southern Monitor Valley; 2) vested water rights in the Ralston and McKinney allotments; and 3)1866 Act Ditch rights-of-way. ILL GRAZING PERMITS The plaintiffs argue that the government took their property when it revoked their grazing permits. This disregards, however, a long line of cases and the Taylor Grazing Act itself, 43 US.C. § 315 etseq. (1934), which establish the principle that grazing permits are merely a license to use the land rather than an irrevocable right of the permit-holder. Historically, the public lands of the United States were “free to the people who seek to use them, where they are left open and uninclosed [steti, and no act of govemmentforbids this use.” Bufordv. Houlz, 133 U.S. 320,326(1890). But see Leo Sheep C’o. v. United States, 440 U .S.668,686 n. 24. It was, however, also clear that the government’s “failure to object.. did not confer any vested right on the . [users], nor did it deprive the United States of the power of recalling any implied license under which the land had been used for private purposes.” Light v. United States, 220 U.S. 523,535 (191 1). In United States v. Fuller, the Supreme Court held that the Fifth Amendment did not require the government to pay respondent, a large cow-calf rancher, “for that \4 The Court went on to say “the United States can prohibit absolutely or fix the terms on which its property may be used. As it can withhold or reserve the land, it can do so indefinitely.” Light, 220 U.S. at 536. 25 element of value [in his land] based on the use of respondent’s fee lands in combination with the Government’s permit lands.” United States v. Fuller, 409 U.S. 488,493 (1973). While Fuller is most applicable to the takings phase of this case because it directly addresses whether the government has a duty to reimburse grazing permit holders, it establishes that grazing pennits are licenses rather than rights. The Federal Circuit extended Fuller in Alves v. United Slates, 133 F3d 1454 (Fed. Cir. 1998). InAives the court held that there is no difference between grazing permits and grazing preferences because neither is a compensable property interest under the Fifth Amndmept. Ajves, 133 F.3d at 1457. More recently, in Public Lands Council v. Babbitt, 529 U.S. 728 (2000), the Supreme Court reaffirmed that the Secretary of the Interior has “consistently reserved the authority to cancel or modify grazing permits.” Public Lands Council, 529 U.S. at 743. The Court explored the history and purpose of the Taylor Grazing Act?5 At no time have the grazing pennits been recognized as a right but rather a privilege — an opportunity to rent the public range from the government. The Secretary always retained the right to decrease the number of “animal unit months” (AUMs) allocated to each permit in reality decreasing and increasing the number of stock allowed to range the public land as its condition changed26 The rancher plaintiffs in Public Lands Council argued thatthey were harmed by the Secretary’s ability to change their permits after they were issued because it would affect their ability to get mortgages and loans. However, the Court said the language of the Act makes it “clear that the ranchers’ interest in permit stability cannot be absolute.” Id. at 741 Y If haidship is ‘25. The Court noted that the rules the Department of the Interior established for allocating grazing permits had a three tier ranking preference: 1) first preference went to owners who had base property to support their herds as well as had historically grazed the public range; 2) then the preference went to those who owned base property but had not grazed the range before; and 3) final preference went to those who had no base property. See Public Lands Council, 529 U.S. at 734-35. \2 Indeed Congress gave the Secretary of the Interior discretion to “create grazing districts, to establish and modify the boundaries thereof, and from time to time to reclassify the lands therein for other purposes.” Red Canyon Sheep Co. v. Ickes, 98 F.2d 308, 313 (D.C. Cir. 1938). \fl The court also noted that the regulations establish that if a permit holder did not “make substantial use” of his permit for two years, the Secretary could revoke the portion of the pennit for the unused part. The Secretary also had to approve such non-use on an annual basis, but could grant it for no more than three consecutive years. See Public Lands (continued...) 26 . produced, as well it may be at is for the Congress, and not the Court to amend the law As this trilogy of cases makes clear the plaintiffs could not hold a valid property interest in the grazing permits Thus, their fee lands and water rights must be valued independently of any value added by any appurtenant grazing permits or grazing preferences. As this court stated in Hage I, “[ajlthough the permit may have value to plaintiffs. . value itself does not create a compensable property right, no . matter how seemingly unjust the consequences to the plaintiffs. See e.g., United States v. Cox, 190 F.2d 293,295(10th Cir. 1951), cert. denied 342 U.S. 867(1951).” Hagelat 19. lndeed,thiscourtrecognizedin WhiteSandsRanchersofNewMexico v. UnitedStates, 14 Cl. Ct. 559(1988), that plaintiffs had no compensable right to the value that the permit lands contributed to their fee ranches, because the government should not be required to pay for value that it contributed to the ranches. See White Sands Ranchers, 14 Cl. Ct. at 566-67? \21(...continued) Council, 529 U.S. at 747. The defendant asserts that the plaintiffs did not make full use of the permitted land which is why the grazing permits were revoked. However, all arguments about the “taking” of the grazing permits is moot since the plaintiffs could not hold a property interest in them under the Taylor Grazing Act and its implementing regulations. \ However, if by revoking the grazing permits the Forest Service and Bureau of Land Management prevented the plaintiffs from accessing and using their vested water rights, then those agencies may have taken the plaintiffs’ water rights. Those water rights were a property right and not a license like the grazing permits. \ The United States District Court in Nevada recently reiterated that grazing rights are not appurtenant to vested water rights. See Gardner v. Stager, 892 F. Supp. 1301, 1303 (1995). The fact that plaintiffs “predecessors grazed stock on the land at issue in the 1870’s does not mean that the Gardners today have a vested grazing right. immune from federal regulations. On the contrary: use of public lands for stock grazing. .was and is a privilege with respect to the federal . government, revocable at any time.” Gardner, 892 F. Supp. At 1303-04. The Nevada Supreme Court recognized that the United States allows ranchers to graze on federal lands, but can freely revoke that privilege at any time. See Itcaina v. Marble, 55 P.2d 625 (Nev. 1935). The Nevada Supreme Court also recognized that portions of Nevada’s water law were superceded by the Taylor Grazing Act, 43 U.S.C. § 315 et seq. (1934). See Ansolabehere v. Laborde, 310 P.2d 842 (Nev. 1957) cert. denied, 355 (continued...) 27 . . At closing argument, defendant and amid also raised again a quasi- jurisdictional issue by asserting that the holdings of United States v. Fuller,409 U.S. 488 (1973), and Alves v. United States, 133 F.3d 1454 (Fed. Cir. 1998),preclude this court from awarding plaintiffs any damages for any taking of their alleged water rights. Thus, even if plaintiffs were able to prove ownership of the water rights they assert were taken, defendant argues Fuller and Alves would prevent this court from awarding any compensation. According to defendant, these cases classify the interests plaintiffs allege were taken as “non-compensable” property interests. Defendant, however, makes too much of Fuller and Alves for this stage of the proceeding. Defendant’s arguments would be more appropriately raised in the takings stage. While this court believes that plaintiffs present a strong equitable argument with regard to their grazing permits, the case law on this point is clear. Only Congress can create rights out of what now are licensees. Of course, there are rights to procedural due process in any permitting decision. See Bischoffv. Glickman, 54 F. Supp.2d l226(D.Wyo. 1999),aff’d,216F.3d 1086(2000). See also Nat’! Wild!jfe Fed’nv. Cosgr,21 F. Supp.2d 1211 (D.Or. 1998). Therefore,the plaintiffs have no compensable right in the land covered by their grazing permits or in the permits themselves. lv. SuRFACE ESTATE Plaintiffs, relying on a string of federal laws dating from the 18th century, claim a 752,000-acre surface estate for grazing; the acreage essentially encompasses the area of their grazing allotments. Defendant claims there is no such right. While at first glance this claim strikes the court as an attempt by the plaintiffs to revive their claim to a property interest in the rangelands that this courtdisallowed in its summary judgment order, see Hage I at 170, it is somewhat different and requires analysis by the court. Therefore, this court will address each law in its chronological order. A. Ordinance of May 20, 1785 The first statute on which plaintiffs rely is the Ordinance for Ascertaining the Mode of Disposing of Lands in the Western Temtory of May 20, 1785. The Ordinance directed surveys and divisions of Western lands into townships and established a system by which land within the townships would be sold to the public \Z2(.continued) U.S. 833 (1957) (1925 Stockwatering Act is superceded by Taylor Grazing Act where they overlap). 28 . in the original thirteen states as well as granted to the members of the military in recognition of their service. Plaintiffs argue that the Ordinance stands for the policy of disposing “of the land so that the natural treasure that belonged to the United States could be put to productive use by its citizens. . . The return benefit to the United . States was productivity and economic contribution to the newly emerging communities in which these federal lands were situated.” This policy, although clearly implicit in the Ordinance, applies only to township lands, not the range. Moreover, the Ordi nance concerned “the territory ceded by individual [thirteen] states to the United States.” The ordinance is inapplicable to Nevada because Nevada was governed by the law of Mexico at the time of the ordinance and would not become a state for 79 years. Thus, this ordinance does not provide support to plaintiffs’ claim to a surface estate. B. Kearney’s Code and the Treaty of Guadalupe-Hidalgo Plaintiffs apparently recognize thisjurisdictional problem and contend that the surface estate was properly under the legal regime governing Nevada from the time of its occupation to the Treaty of Guadalupe-Hidalgo. Plaintiffs argue that the Treaty encompassed the law as recognized by the Kearney Code upon the accession of Nevada by the United States. The Keamey Code came into effect on September27, 1845, by order of Brigadier General Stephen Watts Keamey. The United States and Mexicoconcluded theTreaty of Guadalupe-Hidalgo on Februaiy 2,1848. The Treaty ended the US.-Mexican War and enlarged the borders of the United States to include the present states of California, New Mexico, Nevada, Arizona, and Colorado in exchange for 15 million dollars. Upon ratification, the United States began to manage the newly acquired territory both as a sovereign and a proprietor under the Property Clause. See U.S. Const. Art. IV, § 3,cl2(”Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”). A transfer of territory by si,such as through a Treaty, “confers.. [only]. a derivative title.” CHARLES G. FENWICK, INTERNATIONAL LAW 219-220 (1924). Private holdings are not deemed expropriated with changes in sovereignty. Plaintiffs argue that as a matter of law, the United States was bound to recognize possessory rights as property because such rights were recognized under Mexican law. The principle of recognition of preexisting rights is supported by Article VIII of the Treaty, which stipulates respect and protection for Mexican private property coming under the jurisdiction of the United States. 9 Stat. 922,929. The California Supreme Court explained that under Mexican law occupation of land for stockraising could create a possessory property right. See Sunol v. Hepburn, I Cal. 254 (1850). However, the court stated that the mere roaming of cattle and other stock “was too slight a circumstance on which to found a claim to 29 wild, uncultivated and unfenced lands, unless it be also shown . that such cattle and . . horses were restricted by keepers or otherwise within definite boundaries.” Sunol, 1 Cal. at 262. Even then, occupation required the intent to occupy along with “actual detention” of the thing occupied. Sunol, I Cal. at 263. The plaintiffs presented no evidence at trial that demonstrated the plaintiffs’ predecessors-in-interest had occupation of the land prior to Nevada being purchased by the United States° Neither did they provide evidence which would link Mexican law to their claim for 752,000 acres of public land. Thus, this Treaty does not provide support to plaintiffs’ claim to a surface estate. C. Act of 1866 The plaintiffs next turn their attention to the Act of 1866, which they argue created a system of split-estates. Because this court exhaustively examined it above, we need only restate here that the Act established water rights, but did not include more than a right-of-way to access those water rights. Thus, this act does not provide support to plaintiffs’ claim to a surface estate. D. Desert Lands Act of 1877’ The Desert Lands Act encouraged settlement of the West but limited any person’s reclamation of the desert to no more than 640 acres. At the same time, the Act reserved water rights to prior appropriators and required all surplus water to be free for others to appropriate and use. However, as the plaintiffs note, they are not claiming fee simple lands under this Act nor do they rely on the Act to establish their grazing allotments. This Act merely shows that Congress limited settlers reclamation to 640 acres, not752,000 acres.32Thus, this act undercuts plaintiffs’ claim to a surface estate. E. A Trilogy: the Act of 1888, Act of 189O, and the Creative Act of i89i \3J In fact in their post-trial brief, the plaintiffs only allege that their predecessors-in-interest had possession of the range in question as far back as the 1860s. \ji Desert Lands Act, 19 Stat. 377 (1877). \3 Plaintiffs’ Pine Creek Ranch encompasses approximately 7,000 acres. ‘3.Act of 1888,25 Stat. 527 (1888). \3.4 Act of 1890, 26 Stat. 391 (1890) (also known as the Canal Act). \35 Creative Act of 1891,26 Stat. 1103 (1891). 30 . This trilogy of laws was an extension of the Desert Lands Act and illustrates Congress’ efforts to balance recognized prior usage of public lands by private citizens with protecting and taming the vast rangeland of the West. The Act of 1888 reserved desert lands that contained water or the possibility of ditches and waterways from entry and settlement. Congress quickly revoked the law in 1890, because it threatened to shut down all settlement in the desert areas without water the land was useless. The Act of 1890 repealed the Act of 1888, reinstated settlers who had claims to the land prior to the Act of 1888, and allowed them to continue to occupy and settle the land. The Creative Act of 1891 clarifIed the 1890 Act by repealing the pre-emption laws. It also gave the President the authority to create National Forests from public lands? While this series of laws eventually allowed the status quo to exist for settlers who had begun to reclaim the desert lands, nothing in the laws suggests that the settlers could accumulate a surface estate in public land through grazing permits as the plaintiffs claim. Instead, the laws affirm the rights of settlers to maintain their water rights and develop desert parcels of up to 640 acres. Thus, these acts also do not provide support to plaintiffs’ claim to a surface estate. F. Forest Service Organic Administration Act37 The Forest Service Organic Administration Act set the parameters for reserving and establishing National Forests. The purpose of these National Forests was to “improve and protect the forests within their boundaries.” 16 U S.C. § 475. At the same time, the Act allowed settlers who lived within the boundaries of the Forest Reservations to enter and exit those lands freely. Neither did it prevent them from crossing the Forest Reservations to reach their homes. The Act also specifically outlined the purposes for which water could be used: domestic,mining, milling, and agriculture. The Act did not deprive settlers of any vested water rights once a forest was reserved and allowed them to locate new land for any unperfected claims in the new forest. However, this merely indicates that Congress understood the importance of water rights, not that Congress intended to create split estates in public land as plaintiffs claim. G. Livestock Reservoir Siting Act The Livestock Reservoir Siting Act allowed individuals and livestock companies to construct reservoirs on unoccupied public lands for the purpose of watering stock. It also allowed them to fence an area around the reservoir as long as \3. The Creative Act gave the President authority to create the Toiyabe National Forest in 1907. \32 Forest Service Organic Act of 1897,30 Stat. 11(1897). \3 Livestock Reservoir Siting Act, 43 U.S.C. § 952 (1897). The reservoir portion of this act was repealed by the FLPMA, 43 U.S.C. § 1769(1976). 31 it was available for others to use for watering stock. In addition, the Act gave the constructor of the reservoir control of the surrounding grazing up to 160 acres but — — subject to regulations the Secretary of the Interior would implement. The defendant calls the right to water stock a bare license to use unoccupied lands,while the plaintiffs argue the settlers gained an easementaround each reservoir. However, the Act’s language never states that an easement was created. Instead, it states that a reservoir could be constructed of up to 160 acres. It is also clear from the Act’s language that fences could not be constructed without permission of the Secretary of the Interior and he could direct them to be torn down immediately. This clearly indicates Congress had no intent for settlers to gain a permanent right to use or own the land around the reservoir. H. The Stock Raising Homestead Act39 The Plaintiffs claim that Section 10 of the Stock Raising Homestead Act allowed current users of water to have a right of way across public land to that water of one to five miles across depending on the distance to the water source. The regulations interpreting section 10 state simply that applicationsfor such a”driveway” to access water will be considered as received by the Secretary of the Interior40 The fact that Congress split the mineral and surface estate in this Act (and others) does not mean that either ceased to be within the control of the Secretary of the Interior. The Land covered by this Act could be acquired in blocks of no more than 640 acres. I. Taylor Grazing Act4’ Congress passed the Taylor Grazing Act in response to over-use of the open range. The Act gave the Secretary of the Interior broad discretion to manage the public land through rules and regulations and provided for future grazing to be allowed only via grazing permits. However, the system adopted gave a prderence to those who had been grazing the land prior to passage of the Act. The Court of Appeals for the D.C. Ciicuit stated that one of the two purposes for the Taylor Grazing Act was to identify and protect the stock growers grazing rights. Red Canyon Sheep Co. v. Ickes, 98 F.2d 308, 314 (1938). However, the court affirmed that grazing rights were not property rights in the traditional sense of the word, but similar to licenses that could be issued and revoked by the Secretary of the Interior. Id. at 315. \3 Stock Raising Homestead Act of 1916,39 Stat. 862,43 U.S.C. § 292 et seq. \4Q Stock Raising Homesteads — Act of December 29, 1916, Circular No. 523 § 15. \4jTaylor Grazing Act, 43 U.S.C. § 315 etseq. 32 . . J. Nevada’s Three Mile Grazing Rule In the alternative to these federal statutes, plaintiffs allege that they have a surface estate based on Nevada’s Three Mile Rule. NEv. REV. STAT. 533.505(1) (2001). This law was passed in 1925, well after the Toiyabe National Forest was created in 1907, and stated that a rancher was guilty of a misdemeanor if he allowed his stock to water at a site of another or within three miles of that site for two or more consecutive days. While the plaintiffs try to use this law to create a right, it is a well- established legal principle that “[t]he laws of the United States alone control the disposition of title to its lands. The States are powerless to place any limitation or restriction on that control.” United States v. Oregon, 295 US. 1,27-28 (1935). In fact, “the construction of grants by the United States is a federal not a state question and involves the consideration of state questions only insofar as it may be determined as a matterof federal law that the United States has impliedly adopted and assented to a state rule of construction as applicable to its conveyances.” See id. (citations omitted). In addition, the Act of 1866 only allowed local custom and usage to be evaluated where they did not conflict withfederal law. The Taylor Grazing Act did the same: local custom was used as a guide as grazing pennits were issued to the extent they did not conflict withfederal law. Thus, Nevada’s Three Mile Rule would only be applicable to the extent it does not conflict with federal law. However, none of the parties nor the court have found a federal statute which would establish a similar right to graze for three miles around a water source. Instead, every law and case the court could find reinforces the principle that grazing on federal public land is a privilege and never a right. None of these statutes give the plaintiffs a surface estate. At most, they may have a right to go on to the land to access the water in which they have a vested right. The plaintiffs are correct that all of the statutes addressed in this section included savings clauses which stated that no laws could change vested rights. However, this court is not convinced that Congress ever intended to split the surface estate to the extent that plaintiffs claim. There is no indication that Congress intended to give away vast acreages of the public land when the largest amount cited in any of these Acts was 640 Acres. Therefore, plaintiffs have no right to the 752,000 acre surface estate that they claim. CONCLUSION The property involved here is not land at a specific time, but rather the usage of water which ebbs and flows throughout the years. The questions the court confronted were whether plaintiffs owned vested water rights and had a right to put to beneficial use the water that traveled the ditches. In addition to a two week trial 33 . with witnesses and evidence, the court at the request of the parties made a physical site inspection of many of those ditches. For the reasons addressed above, thecourtflnds that the plaintiffs have proven that they and their predecessors-in-interest own the rights to use the water listed in this FINAL OPINION: Findings of Fact. The plaintiffs have also proven that they own the ditch rights to ten of the sixteen ditches and pipelines that they claim. However, the plaintiffs do not have property rights in the surface estate or in the grazing permits. Thus, the court upholds in part and denies in part the plaintiffs’ claims to three kinds of water 1) vested water rights in the Southern Monitor Valley; 2) vested water rights in the Ralston and McKinney allotments; and 3)1866 Act Ditch rights-of-way. The court also grants the defendant’s Motion to Dismiss with respect to plaintiffs’ Surface Estate and Grazing PCrmit claims. NEXT STEPS This Final Frnding of Fact simply addresses what property plaintiffs own. The next and final stage will address whether the plaintiffs’ ditch rights-of-way (and other water rights) were taken by the government. The court will use a two step analysis to answer that question. The plaintiffs must present evidence to establish that: 1) plaintiffs had a beneficial use for the water prior to the government revoking their grazing pennits and 2) that there was a taking of the plaintiffs’ right to use their vested water right. Essentially, the plaintiffs must demonstrate they could have used the water if the government had not deprived them of access to prevent them from using the water. The plaintiffs have a right to the water so long as they can put it to beneficial use. The parties are directed to the order that accompanies this opinion for the next steps in this case. Approximately sixty days from the date of this opinion the court will schedule a status conference with the parties to discuss the next immediate steps. Because of the length of this litigation it is hoped that one final proceeding, whether trial or oral argument, can be used to finally resolve this case. It is also hoped that the valuation issues can be included in this segment of the case. It is so ORDERED. LOREN A. SMITH SENIOR JUDGE 34 Whey is Item 29 being psented by the County Manager?

Ms. Wickman

has presented her own agenda items in the past, why use the County Manager? The actual request is not only for an MOU but also for the Nye County Commissioners to appoint (see attachment A) a designated representative and an alternate representatve, this is not how the agenda item reads, and does give the Commissioners their right to the appointment, but rather leaves the appointment to Ms. Wickrnan, which again is not what the BLM document requests. I request that this item has not been correctly presented to the Commissioners and should he Diaced on the next agenda ( September 20th 2022) without the appearance of the County Manger’s sign off on this item. See information for you attached below. ltem 29 — MOU with BLM during the Natural Environmental Policy Act (NEPAi. 1. ftern1—og3 of this document states “This Master MOU establishes a cooperating agency relationship between the BLM and Nyc County for the purpose of preparing environmental analysis for renewable energy projects with the BLM Southern Nevada District Office area”. Which could very well by pass the residence of Nyc County. NYE COUNTY. Item IV no.5—To the fullest extent practicable, after consideration of the effect such releases may on the BLMs ability to withhold this information from other paties The BLM may place Nye County into a Violation of Open Meeting Law). B. NYE COUNTY (page 5) 2 (end paragraph) “and will identIy the project specific representatives for Nyc County”.