Reid Loses It
by Brooks Wallace
he hallowed halls of the Nevada Legislature are frenzied during the 1999 session, and at times it seems not even the inmates are running the asylum. At first glance, Assembly Speaker Joe Dini and the various committee chairmen seem to be doing as well as can be expected during this first session under the new 120-day time limit. But a closer look shows its a strange scene in the lower house, and that a great deal of the strangeness arises not so much from the time schedule as from the unmistakable activity of U.S. Senator Harry Reid.
Hows that? Didnt the newspapers say that Reid and U.S. Senate Minority Leader Tom Daschle were on a week-long junket to South America during the congressional spring break?
They did. But this is an era of easy inter-continental electronic communication, and the senator found it convenient in late March and early April to launch a blitzkrieg without parallel on fellow Democrats in the state Assembly. Longtime legislative observers say the assault surpasses anything ever seen in the Nevada Legislature in modern times.
His own party in the Assemblyasserted Reid and his minions in a full-scale attempt to pull every string possiblewas threatening his legacy for the ages, the famed (or infamous, depending on where observers stand) Negotiated Water Settlement.
Specifically at issue was Assembly bill 380, submitted by Marcia deBraga, chairman of the Committee on Natural Resources, Agriculture and Mining, to clean up a new loophole recently punched in Nevada water law.
DeBraga represents District 35, which sprawls over parts of Eureka and Lander counties, all of White Pine County and all of Churchill Countyhome of the Newlands Irrigation Project. That project is the nub of the issue. Ushered into law in 1902 by Nevadas then-Senator Francis G. Newlands, the project subsequently named for him was one of the first reclamation projects built by the federal government. To recruit settlers to the Fallon area project, the U.S. government explicitly bound itself, under law, to guarantee them a permanent and assured water supply in the form of deeded water rights under Nevada law.
That was then.
Todayand for the last 10 yearsthe federal government has been singing a different tune [see "Dragons Teeth," Nevada Journal, December, 1997]. And the choirmaster for that new melody"The Newlands Project Must Be Destroyed"has been Senator Reid. It is not merely that the senator has made it quite clear he believes the project was a mistake. Knowledgeable experts regard his "legacy" legislation, Public Law 101-618, as a measured attempt to breach the federal promises underlying the project without paying the legal pricei.e., without fully compensating Churchill County farm families for the taking of their land, water and livelihoods.
Reid structured PL 101-618 on a model akin to cannibals around a man in a potwhere the cannibals all have a vote on what to eat for dinner, but the man in the pot has none. Reids law empowered the interest groups eager to take the Newlands water away from the Churchill project and disempowered the people who legally owned the water in question. The Pyramid Lake Paiute Tribe and Sierra Pacific Power Company were made "necessary signatories" to any subsequent agreement: They would have to approve it. But not the Churchill County owners of the waterrepresented by the Truckee-Carson Irrigation District (TCID). They, under Reids scheme, were excluded from the ranks of the necessary signatories: their approval of any "Negotiated Settlement" regarding what was to be done with their water was not needed.
One of the privileged signatories working with Reid to end the existence of the Newlands Project, the Pyramid Lake Paiute Tribe, has also devoted decades to litigating against the project in the federal courts. At times tribal lawyer Robert Pelcyger has relied on Nevada water law and at other times he has sought to subvert itor in legal parlance, make "new law" in the courts. But whatever the stance of the moment, the constant polestar of the tribes legal efforts has been taking Nevada waters back from the hykothe white man.
In the course of a case appealed to the Ninth Circuit Court of Appeals by the tribe against Nevadas Office of the State Water Engineer, a federal appeals judge pleased the tribes lawyers by opening a small breach in Nevada water law. Although federal judges are supposed to follow Nevada law when deciding water cases involving the states Indian tribes, either ignorance or politics produced a decision that, say numerous attorneys, misinterpreted about a century of Nevada water law precedent.
That small breach in Nevada water law, if not corrected, would have thrown into legal hazard water rights throughout the entire state of Nevada, not just the Newlands Project. Therefore last fall Fallon City Attorneys Mike Mackedon and Steve King drafted clarifying language which, after tweaking by the Legislative Counsel Bureau, emerged this session as the original AB 380. Mackedon also met with Assembly Speaker Joe Dini and Natural Resources Chairman deBraga to line up support. When introduced, the bills provisions 1) affirmed previous Nevada water law interpretations of the priority date of water right, 2) clarified that a surface right cannot be forfeited, and 3) set out specific ways to prove that a water right has not been abandoned. The bill also protected the water supplies of municipalities and public utilities from challenges alleging abandonment.
As this article goes to press, the fate of AB 380 is unknown. But so is the fate of Harry Reids long-term reputation, since now even state legislators in his own party see that the senatordespite all prior claims to the contraryhas committed his power to the cause of subverting Nevada water law. That goal was always implicit in Reids "legacy" legislation, but now the fundamentally surreal nature of Reids intentions for Nevada has erupted into full public view. Lawmakers also will not soon forget the senators abusive manner as he sought to impose his personal will on members of the Nevada Assembly.
Heres the chronology of those extraordinary events over the hectic weeks in February, March and April:Late February: It turns out AB 380 wont be the only water rights legislation before the Legislature. Assemblyman Greg Brower proposes AB 412, on behalf of Sierra Pacific Power Co., to exempt water rights in the Truckee Meadows from the abandonment and forfeiture provisions in Nevada water law. Sierra Pacific strikes an agreement with Chairman deBraga and the people in Fallon: "If you dont oppose our bill, we wont oppose yours." March 10: The first committee hearing is held on AB 380, and the bill is scheduled for a work session. March 16: At the work session, State Engineer Mike Turnipseed asks for an amendment narrowing the scope of the bill by removing some language concerning his office. He also opposes Sierra Pacifics bill, AB 412, calling it legislation that merely serves one special interest. City of Sparks Water Engineer Bill Isaeff, who earlier had supported AB 380, recants his testimony, as Robert Pelcyger, attorney for the Pyramid Lake Paiute Tribe, comes in from Truckee River Operating Agreement (TROA) negotiations in Truckee, California. Pelcyger says he and the tribe oppose the bill and charges it will negatively affect the TROA and the negotiated water settlement. But the TROA is facing other problems as the State of Californiaunhappy with some of the operating agreements draft provisionsis actively holding up the talks. And May 1st is the deadline by which the agreement must be signed. March 18: Mary Connelly, from Senator Reids office, contacts Sierra Pacific lobbyist Susan Miller and tells her to make sure that AB 380 is killed. Miller explains that she cant do that because of the agreement made with deBraga. Connelly retorts that Sierras AB 412 wont mean anything if the tribe backs out of TROA.
Later that day deBraga tells AB 380 supporters that she can probably get their bill passed out of her committee if the Fallon interests will agree to reduce Newlands Project irrigation acreage from 74,000 acres to 65,000 acresan 11 percent reduction in their water-righted ground. The quid pro quo asked of the tribe is that it drop litigation challenging the transfer of water rights in the project. Mary Connelly, on behalf of Senator Reid, also approaches the chairman of TCID to seek an acreage cap.March 19: Pete Morros, state Department of Conservation and Natural Resources director, meets with representatives of TCID, the Newlands Water Protective Association (NWPA), the Town of Fernley, and the City of Fallon. He, too, wants to discuss the possibility of "quantifying the acreage in the project" at 65,000 acres. What this would mean in English is that 9,000 acres of water rights owned by individuals as private property would just go away. But no one at the meeting can figure out how to "make this work"i.e., take the property without taking the property. Under the Bill of Rightsthe Fifth Amendmentprivate property cannot be taken for public use without just compensation. Nevertheless, the Churchill County interests agree to discuss the cap if the tribe will discuss ending its federally funded legal assault on the Newlands Project. March 22: The tribe refuses. It wont discuss halting its decades-long litigation offensive, and that appears to strengthen prospects for AB 380. Sierra Pacific, seeing chances waning for its bill after Turnipseeds testimony, talks to deBraga and agrees to fold AB 412 language into a new version of AB 380. Sierra Pacific lobbyists will actively support the joint bill, they say.
Rumors fly across Northern Nevada about what appear to be rapidly improving chances for AB 380 to make it out of the Legislature. Not only has the Nevada Farm Bureau signed on to help push the bill, but Reid operative Mary Connelly reportedly told the Carson River Subconservancy District she is tired of being blackmailed by the tribe. If a deal to reduce acreage in the Newlands Project with irrigation rights can be worked out, the Reid forces will "roll" on the tribe, goes the story, and opposition to AB 380 will go away.March 23The Empire Strikes Back: If spirits were up in Churchill County, now theyre down. Harry Reid has called the new governor, Kenny Guinn, and demanded that Morros be told to drop out of the effort to shape AB 380 into consensus legislation. Guinn complies and Morros backs off. Reid also calls the nine Democrats on the Natural Resources committee and tells them AB 380 must be killed. Reid even recruits Interior Secretary Bruce Babbitt to join him in calling Patricia Mulroy, Southern Nevada Water Authority (SNWA) director. Reid threatens that if AB 380 goes through, hell see to it that federal funds for a major Colorado River project will be cut. Mulroy calls the Assembly Democrats from Southern Nevada districts, spreading panic through the delegation.
Responding to the Reid machinations, the Newlands Water Protective Association (NWPA) and the Lahontan Valley Environmental Alliance (LVEA) ask for grassroots help from agricultural folks in Lyon and Douglas counties. Nevadas People for the West chapter starts its own grassroots campaign with a three-hour conference call among county groups. The call produces a fax, phone call and e-mail wave. The Legislatures switchboard is overwhelmed.March 24: Nevertheless, AB 380 is now in big, big trouble. DeBragas supporters in the committee begin dropping like flies. The votes to get the bill out of committeein any formdo not appear to be there. Chairman deBraga asks some of her committee members why they are now opposing the bill. "Dont ask," she is told. "Its purely political nowReid is involved." March 25: Amid the gloom about prospects for AB 380, a 17-year-old article surfaces and begins to be passed from hand to hand through the corridors of the Assembly. Published by the American Indian Lawyer Training Program, Inc. in 1982, the article is titled "Indian Water Policy in a Changing Environment." It immediately attracts interest because Robert Pelcyger, attorney even then for the Pyramid Lake Paiute Tribe, is quoted at length asserting that "state law does not apply to Indian water rights."
Also floating around the Assembly now are copies of comments the Pyramid Lake Tribe has filed in response to the draft State Water Plan. The documents are replete with language contesting basic, long-accepted concepts in Nevada water law and policy. Even the fundamental premise of state lawthat "all water within the state, whether above or below ground, belongs to the public and its use is subject to a system of water rights administered by the State Engineer, and by state and federal court decrees and regulations"is rejected.
"This principle assumes state authority over the Pyramid Lake Paiute Tribes sovereign authority to govern within the exterior boundaries of the Pyramid Lake Paiute Reservation and is incorrect," is the tribes response. It is now painfully obvious that Pelcygers ultimate goal, which Senator Reid is supporting, is nothing other than the complete subversion of Nevada water law.April 1: On April Fools Day Senator Reid stops by a TROA negotiating session being held at Sierra Pacific headquarters in Reno and offers a pep-talk to the same cast that has been appearing on stage at the Nevada Legislature. TROA will happen, Reid says, and, in the process, will save "an agriculture district." But after he leaves, California representatives drop a bombshell mocking the senators optimism. They wont be ready to approve the current draft by the May 1st deadlineCalifornia is not comfortable with the draft agreement on the table. It is clear that after 10 years of talks, there is still no consensus on the details of a Truckee River Operating Agreement among even the "big five" signatoriesCalifornia, Nevada, Sierra Pacific, the Pyramid Lake Tribe and Washoe County. April 2, 10 a.m.: Representatives from the Fallon community meet with Governor Guinn to discuss AB 380 and the chances of getting it passed during this legislative session. The governor says that Reid did in fact contact him, and expresses frustration over trying to work with the Democrat-controlled Assembly. He will support AB 380, he says, if resources director Morros assures him it wont harm Washoe County interests. April 2, 11:30 p.m.: Fallon people have spent the afternoon contacting the Natural Resource Committee members in support of AB 380. Assemblyman John Lee has revealed the main thing on his mind: He wants to be a Clark County Commissioner, but Harry wont let him onto the stage in Las Vegas with Al Gore later in the month if Lee votes for the bill. April 3: Its a Saturday morning, the day before Easter and the day after TROA negotiations. Up on the third floor of the otherwise vacant Legislature, a work session on AB 380 has been going since 9:00 a.m. Three separate sets of amendmentsone with a Newlands Project acreage cap are being presented, and witnesses are testifying on what language would be most acceptable. At the session are representatives of the State Engineers office, Senator Reids office, the Pyramid Lake Tribe, the Walker River Tribe, the Walker River Irrigation District, People for the West, Sierra Pacific, Washoe County and the Nevada Farm Bureaualong with people from the Fallon community. Opponents of AB 380 continue to argue that the bill will harm TROA and jeopardize Reids "negotiated settlement." A work session is set for the following Wednesday, April 7. Deadline for all bills to be out of originating committees is Friday, April 9. April 7, 1 p.m.: DeBraga meets with Pyramid Lake Tribe representatives, Reid operatives Connelly and Karen Denio, and Truckee Meadows interests. As deBraga emerges from the meeting visibly shaken, she tells her constituents she "cant even get a period or a comma." The picture looks bleak for Fallon. April 7, 1:30 p.m.: The Natural Resources committee is concluding hearings on wild-horse and environmental-emissions bills, and the work session on AB 380 is about to begin. The hearing room is now packed with representatives of all the different parties interested in AB 380.
Just as the hearing on the other two bills is concluding, Speaker Joe Dini walks into the room. Suddenly three of the committee members decide toin Nevada Legislature venacular"take a powder," costing Chairman deBraga her quorum. She adjourns the meeting.
What is going on? Its not clear. The skinny in the hall outside the hearing room is that both bills, 412 and 380, are dead. Connelly and Pelcyger have been actively working on Sierra Pacific to get the power company people again singing from the Reid-Paiute choir book. It appears to have succeeded: Sierra representatives now vow they will do all they can to get some version of AB 412 passed and not only will no longer support any version of AB 380, but will actively work to kill it.April 8, 5 p.m.: What do you knowtheres still life in AB 380. Its suddenly dawned on Assembly Democratic leaders that deBraga just barely won reelection in her last three races and probably will not be returned to Carson City by her constituents if AB 380 goes down in flames. That could endanger party control of the Assembly during the upcoming all-important year 2001 reapportionment session. So Speaker Joe Dini and Majority Leader Richard Perkins caucus with Natural Resource Committee Democrats and tell them now that they must vote with deBraga the next day to pass AB 380 out of committee. Later, an irate Harry Reid calls Joe Dini and tells him if the bill goes through, Reid is going to permanently sever their relationship. Reid and his staffers are now actively contacting all members of the Assembly to discourage, encourage, threatenwhatever it takesto once and for all kill AB 380. April 9, 3 p.m.: Its the last day, and the final hearing on AB 380. Reid is continuing his fusillade upon Assembly Democrats. Natural Resource Committee Democrats are in a tight spot: between powerful Dini and enraged Reid. Wide-eyed whisperers report Reid has been personlly belittling Dini as "an old man who has outgrown his usefulness." One assemblywoman staggers toward the committee hearing as though headed for the gallows. She has just gotten off the phone with Reid. With tears in her eyes, she tells lobbyists from the Truckee Meadows not to be surprised if she votes for 380. Committee members have to vote with their leadership, she says, but anything can happen on the Assembly floor, and in the Senate. April 9, 3:30 p.m.: Chairman deBraga calls for a voice vote, and AB 380 is passed by a 9-1 margin. Three membersDave Humke, Genie Orenschall and John Leewere off "powdering" their noses. Lee now will get to stand on the stage with Al Gore.
Reid operative Mary Connelly, representatives of Sierra Pacific, Washoe County, the Pyramid Lake Tribe, and the Subconservancy District all leave the meeting in mass panic. DeBraga tells her constituents that AB 380 will go to the floor of the Assembly the next morning, April 10, at 9 a.m.April 9, 4:30 p.m.: But only an hour later, AB 380, as amendment 478, is already on the floor of the Assembly, undergoing its second reading. In shock and from all corners of the building people who realize the significance of the bill flood into the chambers to witness the drama. Speaker Dini, moving down the list of bills that are up for their second reading, pauses to allow members of the Judiciary and Commerce committees to caucus. During the break, serious, desperate lobbying of the unfortunate members of the Assembly continues. Columnist Jon Ralston, who lives for this sort of story, runs around the chambers like a kid at Christmas. DeBraga remarks that no one understands the actual issuemembers are just voting for it because they are angry, or against it because they are scared. April 9, 5:30 p.m.: The rules are suspended on AB 380, the amendment passes, and the bill is headed for the next mornings general file. DeBraga says she has enough votes to get it passed out of the lower house and sent on to the Senate. Sitting throughout the Assembly chamber, members of the dramas large cast refuse to leavethe way things have been going, the bill could suddenly come back and be voted on right then and there. Theres a murmur that a meeting of the Washoe County interests, the tribe and Sierra Pacific has been set for the next morning at 8:30 in the office of Assemblyman Dave Humke. It will discuss strategies for some way to finally, decisively, kill AB 380. April 9, 6:30 p.m.: Dini calls for the Democrats to caucus in the leadership office, while the Republicans meet upstairspossibly reviewing ways to exploit the emerging Democratic split to give them a better shot at winning the Assembly next election. As deBraga leaves the floor shes heard to say, "Peoples lives are on the line here. Political futures are being ruined over this." April 9, 7 p.m.: Dini calls Reid operative Mary Connelly into the caucus and confronts her with Senator Reids "inappropriate behavior"something she has been denying all afternoon. April 9, 7:30 p.m.: The Democrats get a commitment from Connelly to "cooperate" with the people whove been supporting AB 380. But at the same time she is given 10 days to come up with some kind of "compromise."
As these words are written, what all this supposed "cooperation" and "compromise" actually means remains unclear. On the one hand, Dini and the Assembly leaders did give Reid 10 more days to come up with a way to kill AB 380. On the other hand, Dini did emphatically stick his thumb in Reids eyeand did so with the support of most Assembly Democratsby using his power to get the bill out passed out of committee and amended on floor.
Was this just a shot across Reids bowa message to an increasingly inflated and tyrannical would-be czar that he needs to re-enter reality and treat other people like fellow human beings? Or was it also, as Dini told the press, that "Were trying to give the poor people in Fallon and Fernley a little backing. They keep getting pushed to the wall."
That latter explanation could mark an important sea change. Despite Dinis assurances that, "Were not trying to upset the negotiated settlement," what he is acknowledging on the record is the essentially exploitative nature of the scheme that Reid built into PL 101-618 and has been trying to impose for the last 10 years.
No wonder Reid is having conniption fits. And no wonder, as Nevada Journal goes to press, the senator has suddenlyafter a decadediscovered the merits of kicking in big new federal bucks to buy long-disputed Newlands Project water rights. Paying an honest dollar here may lose him points with the greens, but it could keep his bid for a legacy alive.NJ
Brooks Wallace is a freelance journalist who lives in rural Nevada and writes on water issues. He can be contacted at firstname.lastname@example.org.