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Bruce A. Wagman
415.901.8762
bwagman@schiffhardin.com

www.schiffhardin.com

March 30, 2015

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

Assembly Bill 408

To The Honorable Robin L. Titus, Jim Wheeler, Sen. Gustavson, and the Members of the
Committee on Natural Resources, Agriculture, and Mining:
We represent the American Wild Horse Preservation Campaign (AWHPC), and its more
than 3,000 members and supporters in Nevada. AWHPC is a coalition of more than 60
environmental, horse advocacy and animal protection organizations working toward the
preservation of Americas public land and the continued protection of wild horses and burros on
their Congressionally-established habitat in the West. We are writing to urge you to reject or
withdraw Assembly Bill No. 408 (AB 408) or any similar bill due to significant problems related
to the constitutionality of the bill, its impermissible conflict with federal law, its apparent
disregard of Nevada law and policy, and the likely promise of legal challenges to the bill, should
it be enacted. This bill is clearly an attempt to circumvent the federal governments land and
water rights with respect to significant parts of the state, and stands in serious disharmony with
the states policy regarding the protection of its natural resources.
AB 408 Statutory Description
AB 408, as currently proposed, will amend Nevada Revised Statutes (N.R.S.) Chapter
321 by adding a series of provisions that attempt to fundamentally alter federal law with respect
to the federal governments rights to land, come into conflict with the federal governments
eminent domain rights under the Fifth Amendment to the federal Constitution, and impair the
federal governments superior water rights on public lands in Nevada.
AB 408 purports to be a law addressing the use of public lands in the state, and Section
2 of the bill exempts certain lands held by the federal government, but it does not consider
numerous possibilities for other appropriations by the United States, which are codified in
multiple statutes discussed in this letter. Instead, it would ride roughshod over those interests.

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

The Honorable Robin L. Titus, Chairperson

The Honorable Jim Wheeler, Vice Chairperson
The Committee on Natural Resources, Agriculture, and Mining
The Honorable Sen. Don Gustavson, Chairperson, Senate Natural Resources Committee
March 30, 2015
Page 2
Section 3(1) prohibits federal ownership of land in Nevada if the federal government
does not obtain ownership (a) after providing consideration; (b) pursuant to N.R.S. 328.065
through 328.135; (c) due to use of the land pursuant to the federal constitution, Art. I, Sec. 8, cl.
17; or (d) by recording its ownership with the County Recorder. While this subsection properly
exempts many if not most federal land appropriations, it is still in conflict with potential eminent
domain proceedings.
Section 3(2) of AB 408 evinces an illegal and unconstitutional intent to cut the federal
government off from any rights to use land or water, . . . prohibit or restrict the use of or enter
into any contract relating to land or water within the borders of this State for any purpose
[subject to the provisions of subsection 1 of Section 3]. While subsection (2) does incorporate
the same permissible uses contemplated in subsection (1), it ignores multiple other legal avenues
through which the federal government may maintain water rights throughout the state.
Section 3(6) represents a gross overstatement of state powers, and would purportedly
prohibit the federal government from enforcing any federal law or regulation in this State
except on land acquired pursuant to [Section 3(1)].
This unusual and overreaching attempt ignores conflicting federal statutes and more than
a century of established decisions. The bill, if enacted, would clearly be preempted by federal
law, as explained below. That is, the statutory language certainly provides for a scenario in
which multiple federal entitlements (related to securing land or water for environmental,
agricultural, or wildlife interests) can, and likely will, be denied water that is vital to their
existence. Although there is no way to project how this legislation will be applied, the very fact
that the law allows for such a result renders it defective and impermissible.
Section 3(2) impermissibly abridges the priority that federally-regulated parks and
wildlife have with respect to water appropriation
Because the intent and effect of AB 408, Section 3(2), is to remove federal agencies
authority over water rights clearly held by the federal government, AB 408 is preempted by
federal law and policy. The notion that the Nevada legislature could, by an arguably politicallymotivated fiat, remove the life-sustaining sources of water from federally protected species
(including endangered species, birds and mammals protected by statute), as well as federal
installations and reservations, is in direct conflict with established law.

The Honorable Robin L. Titus, Chairperson

The Honorable Jim Wheeler, Vice Chairperson
The Committee on Natural Resources, Agriculture, and Mining
The Honorable Sen. Don Gustavson, Chairperson, Senate Natural Resources Committee
March 30, 2015
Page 3
With more than three-quarters of Nevadas land being managed by federal agencies, the
role of the United States and the activities of these agencies are extremely significant factors in
land and water management within the State. The federal government retains the right to use
waters of a state to the extent necessary to provide the minimal amount of water needed for
federal purposes within state borders. This is a century-old, indisputable doctrine, which has
been refined by the Supreme Court in multiple decisions. See, e.g., Winters v. United States, 207
U.S. 564 (1908) (when establishing Native American reservation, federal government also
reserves sufficient water to fulfill the purposes of the reservation); Arizona v. California, 373
U.S. 546 (1963) (principle of reserved federal water rights not limited to Indian reservations);
Cappaert v. United States, 426 U.S. 128 (1976) (enjoining groundwater pumping that would
jeopardize wildlife (desert pupfish) on national monument lands); United States v. New Mexico,
438 U.S. 696 (1978) (application of reserved water rights doctrine dependent on underlying
legislation).
Two of the most notable examples are the federal Bureau of Land Management (BLM)
and Forest Service, which both have protected interests in Nevada lands and in access to waters
in Nevada. The BLM has a reserved water right for public water holes and springs that may
provide life-sustaining sources for a variety of wildlife. Public Water Reserves protect those
interests and have done so for nearly a century. Additionally, in the wilderness, federal land
management provides for reserved water rights, which are set aside pursuant to the Wilderness
Act of 1964, 16 USC 1131. The Wilderness Act specifically reserves the amount of water
within the wilderness area necessary to preserve and protect the purposes for original designation
of the area, and to ensure the public is able to enjoy the realization of those purposes.
One significant concern is the likely conflict with the BLMs management and protection
of wild horses under the Wild Free-Roaming Horses and Burros Act (WFHBA), 16 U.S.C.
1331-1340, which recognizes as a matter of federal law that wild horses are living symbols
of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms
within the Nation and enrich the lives of the American people; and that these horses and burros
are fast disappearing from the American scene. 16 U.S.C. 1331. It is hard to imagine a
stronger declaration that wild horses need, deserve and must be accorded protection including
access to reserved land and concomitant water rights across the country. The WFHBA and its
detailed regulatory guidance further demonstrate the federal governments intention to prevent
states from interfering with the federal management and protection of wild horses and burros, at
least to the extent that state action would negatively impact wild horses. This has been
unequivocally confirmed by the United States Supreme Court in Kleppe v. New Mexico, 426 U.S.

The Honorable Robin L. Titus, Chairperson

The Honorable Jim Wheeler, Vice Chairperson
The Committee on Natural Resources, Agriculture, and Mining
The Honorable Sen. Don Gustavson, Chairperson, Senate Natural Resources Committee
March 30, 2015
Page 4
529 (1976), in which the Court stopped New Mexico from removing wild horses from federal
land. AB 408 would have the same effect as New Mexicos conduct that was prohibited by
Kleppe, and thus the law would be similarly enjoined. That is, if horses are denied water on any
land, they may be effectively eliminated from federal lands, which would fall directly in the line
of the Kleppe Courts proscription. The protections of the WFHBA, and the delegation of power
to federal agencies, must remain supreme to state laws under the federal Constitutions
Supremacy Clause, and thus AB 408 impermissibly regulates in an area already occupied by the
WFHBA. We note that if Nevada was attempting to increase protections of wild horses by, for
example, providing them with greater water rights, that would be more consistent with the
WFHBA, however, AB 408 creates a potential conflict with the WFHBA, and would be subject
to challenge on that basis
Reservations of water rights may exist pursuant to federal law under the Federal Land
Policy and Management Act, which authorized the withdrawal of public lands containing water
holds needed for watering stock during their movement to seasonal ranges or shipping points, to
the extent those reservations were made prior to 1976. And the water in mineral hot springs with
medicinal or curative properties located on vacant, unappropriated, and unreserved public lands
fall under the jurisdiction of federal reserved water rights. The BLM is authorized, by federal
law, to lease these springs for public purposes.1
Sections 3(1)and 3(6) are in conflict with clear federal powers
Section 3(1) attempts to prohibit federal ownership of land in Nevada, with exceptions
intended to cover all clearly permissible situations in which the federal government may
appropriate land in the state. But its effort to circumscribe federal rights falls short, and thus this
subsection creates potential constitutional infirmities. As just one example, Section 3(1)(a) sets
up a per se rule that there can be no takings, no exercise of eminent domain, without
compensation. But the history of takings jurisprudence establishes that whether there is a
compensable taking under the Fifth Amendment is a question of fact and law to be determined
on a case-by-case basis, not as a matter of state legislative declaration. That possible conflict
could gut the entire subsection, should the right circumstance arise.

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

The Honorable Robin L. Titus, Chairperson

The Honorable Jim Wheeler, Vice Chairperson
The Committee on Natural Resources, Agriculture, and Mining
The Honorable Sen. Don Gustavson, Chairperson, Senate Natural Resources Committee
March 30, 2015
Page 5
Section 3(6) goes even further, and if passed would prevent the enforcement of federal
laws outside of federally-owned lands. In other words, if a federal crime was committed on
private land, the federal law enforcement agencies would have no authority, based on this
subsection, to arrest violators. That attempt to eliminate federal police power and law
enforcement authority cannot possibly pass constitutional muster.
Section 408 is at odds with Nevada law and policy
In addition to Section 408s clash with federal law, as a matter of state law, a prior
appropriation/seniority approach is partially applied to the use of water in the state, and Section
408 would be in direct contraposition to that policy.
It is firm Nevada law that [t]he water of all sources of water supply within the
boundaries of the State whether above or beneath the surface of the ground, belongs to the
public. N.R.S. 533.025. And Nevada law requires that water usage in the state be
appropriated, used and regulated only for beneficial use. Wildlife watering is included within
N.R.S. 533.030(2) as a beneficial use, and Nevada recognizes the value of wildlife, N.R.S.
501.100(2) and the importance of providing wildlife with water, N.R.S. 501.181(3)(c). Thus,
under state law, wildlife purposes (including water supplies for wildlife) are designated
beneficial uses of water, and all wildlife, whether managed by federal agencies or state
agencies, fall within the definition of wildlife used in all state laws that define the term. It has
always been a matter of public interest that the wildlife of the State be protected for all, and not
sacrificed to private interests seeking to override that interest for private gain. But Section 408
would be in direct violation with longstanding Nevada policy that in some circumstances
preserves water rights for wildlife and could have a catastrophic impact on many species who
have inhabited the state for nearly two centuries, and who may be threatened with great harm if
their water supply is limited.
Therefore, as a matter of longstanding Nevada rule, federal priority over water rights for
federally-managed wildlife and other federally reserved parks and lands is a beneficial use of
water one that AB 408 seeks to eliminate without justification.
Additionally, a prior appropriation/seniority approach is partially applied to the use of
water in the state. What this means, as the legislature and the courts recognize, is that wildlife
(e.g., the wild horses) access to water must be considered and respected by virtue of their longterm use of the waterways and their part in providing a beneficial use to the environmental and
ecological natural balance, as well as to a public interested in maintaining and viewing them in

The Honorable Robin L. Titus, Chairperson

The Honorable Jim Wheeler, Vice Chairperson
The Committee on Natural Resources, Agriculture, and Mining
The Honorable Sen. Don Gustavson, Chairperson, Senate Natural Resources Committee
March 30, 2015
Page 6
their natural states. It is Nevada law that [t]he water of all sources of water supply within the
boundaries of the State whether above or beneath the surface of the ground, belongs to the
public. N.R.S. 533.025. It has always been a matter of public interest that the wildlife of the
State be protected for all, and not sacrificed to private interests seeking to override that interest
for private gain.
In conclusion, the proposed law would be in direct conflict with federal and state law and
policy, as well as the controlling dictates of the federal Constitutions Supremacy Clause. It
would be preempted by federal law and create irreconcilable conflicts with current Nevada laws.
If AB 408 is adopted, it will undoubtedly lead to protracted litigation, whether from the federal
agencies or interested parties, or both. We urge you to consider the consequences of a law that
will engender national opposition from the general public and federal officials, placing the state
in the unenviable position of spending its revenues to defend a law that threatens the viability of
habitat and multiple species throughout the state.
Very truly yours,

Bruce A. Wagman
BAW:lfl
cc:

Nevada Senate
Nevada Assembly

40160-0000
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