Attempt to Influence Water Hearing
Was a Coordinated Group Effort

By Steve Miller
copyright (c) 1997, Electric Nevada

A U.S. Forest Service official's newspaper campaign to trigger a wave of letters to Nevada's State Engineer while the latter conducts quasi-judicial water rights hearings turns out not to have been a solo effort.
The undertaking -- decried by Eureka County officials last week as "highly improper" and "absolutely reprehensible" -- also involved the assistance of other members of the Forest Service bureaucracy across Nevada, it has been learned.
Assistant Forest Supervisor Monica Schwalbach, of the Ely ranger district and "Central Nevada Ecosystem," authored the 10,000-word exhortation suggesting that letters be sent to State Engineer Michael Turnipseed. But also involved with the piece was a U.S. Forest Service lawyer, who examined it, and U.S. Forest Service personnel out of the agency's Sparks and Tonopah offices, who distributed it.
Two newspapers -- the Pahrump, Nevada, Death Valley Gazette and the Tonopah Times Bonanza -- published Schwalbach's opinion piece in mid-January as an advertisement. It measured 11 1/4 inches high by six 1/2 inches wide, and was to be billed to the Forest Service.
That, said Schwalbach, grew out of a mistake.
"What happened was, I gave the article to two people, the district ranger in Tonopah, and our public affairs officer in Sparks. [I] had never asked anyone to put out an ad...

"What happened, though, is Tonopah always puts out an ad when they're trying to get something in the newspaper. So that's just something they did out of habit."
On the other hand, Schwalbach acknowledges she and Christine Absher, the USFS public affairs officer in Sparks, were trying to get Schwalbach's account of Nevada water issues into state newspapers however they could.
"What she [Absher] did is ask the Reno paper, if they would publish the article, and I thought she also asked the Las Vegas paper. They weren't interested, and so she re-did it as a letter to the editor. And so that's how we sent it to those papers.
"If she had known, or I had known, that [publication as an ad] was going to be the case in Tonopah or Pahrump, we would have done the same thing. We've got it re-written as a letter to the editor."
Schwalbach now says what she wrote was not intended to pressure Turnipseed, but to "open the conversation in the greater Tonopah area" and "open up a dialog."
But Schwalbach's article is mainly devoted to characterizing different

things that "Mr. Turnipseed should give consideration to." Then it ends with the statement: "To share your views regarding water, write to: R. Michael Turnipseed, P.E., State Engineer," after which his mailing address is listed.
Another problem with the article, in the view of some water rights experts, is that, repeatedly, it misrepresents the purpose of the current adjudication of water rights in central Nevada's Monitor Valley.
Schwalbach portrays the hearings' role determine who should have the rights to use" Monitor Valley water, to decide "whether [federal] land management agencies will be granted the right to manage" the water, and whether Turnipseed "will decide" to "allocate water rights."
But members of the State Engineer's office take great pains to point out that, in such water adjudications, they are entirely bound by Nevada water law -- law under which an individual's historically prior beneficial use of a water source is what establishes that individual's rights to that water.
Thus, especially in Monitor Valley -- settled long ago in the 19th Century -- the role of the state office, they say, is not to make a choice as to who "should have" or should "be granted" or should be "allocated" water rights.

Rather, the adjudication process is largely a process of looking at evidence to see exactly who, under laws established by Nevada legislatures over the 130-year-plus history of the state, already, in fact, holds those previously established rights.
Under those criteria last spring, Engineer Turnipseed, in a preliminary Order of Determination for the Monitor Valley adjudication, rejected as not credible 179 claims that the U.S. Forest Service had filed for water rights already attached to several Nye County ranches.
"The United States of American Forest Service (USFS) filed numerous claims of vested and reserved rights for stockwatering and wildlife purposes," wrote Turnipseed in the preliminary order. "These proofs are determined to be invalid and the State Engineer is recommending to the Court that these proofs be rejected in this adjudication.
"The proofs of vested rights [submitted by the Forest Service] are determined to be invalid on the grounds that the claimed use is stock water which, in all cases, duplicates the claims filed by others who tracked to the original users."
Schwalbach's article did not mention the State Engineer's preliminary order of determination. But she did belittle the Nevada law upon which it was based.

"Today, a century after enactment of many of these laws, society's values and understanding of the importance of water has changed considerably. The challenge for the State," she wrote, "is to integrate contemporary values with [these] antiquated laws."
The assistant forest supervisor argues that, because of its timing, her article did not really constitute any kind of advocacy.
"This article ... you know, presumably would have come out when the hearing was just about over, and everything would have already been said, so it wouldn't have been an advocacy role, per se," she told Electric Nevada.
But in fact the water adjudication hearings in Carson City had been suspended on January 8, over a week before the two advertisements ran. Because of a death in the family of one of the key attorneys, a hiatus in the adjudication until mid-March had also been announced January 8.
Because the federal Hatch Act

proscribes federal employees from certain political activities, Schwalbach was asked if she knew how her activity, on what is a political issue, would be categorized under that law. She said she didn't know.
"The distinction I guess that we would make," she said, "and I worked this out with our office of general counsel and our public affairs shop, you know, before just firing something off to a newspaper -- was that this was intended to inform, not try to play an advocacy role, but inform people of the place where the agency is at."
In 1993, Congress amended the Hatch Act to permit more political activity by most federal and D.C. government employees than the law had previously allowed.
However, according to the federal Office of Special Counsel, federal employees still may not "engage in political activity while on duty, in a government office, or [while] wearing an official uniform."

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