Shades of Gifford Pinchot
Feds Edging Toward the Door
In Monitor Valley Adjudication

by Steve Miller
copyright (c) 1997, Electric Nevada

The father of the U.S. Forest Service, though long dead, spoke out last month on the side of Nevada ranchers -- and against the agency he helped found.
Within hours, Forest Service attorneys announced they were dropping federal objections to 19 rancher claims of vested stockwatering rights.
In a hearing room drama sure to reverberate across the American West for years to come, Forest Service hydrologist Richard Jameson, on the stand, was required to read aloud assurances given ranchers 90 years ago by Gifford Pinchot, first chief forester of the United States.
"The creation of a National

Gifford Pinchot

Forest has no effect whatever on the laws which govern the appropriation of water," pledged Pinchot in the passage from a 1907 forest service 'use' book. "This is a matter governed entirely by State and Territorial laws."
The small, maroon-red, booklet -- published the same year as Nevada's Toiyabe National Forest was formed -- explained to ranchers, miners, loggers and others on the Western lands how the newly established national forests were to work.
However, notwithstanding

Pinchot's promises, in recent decades Forest Service officials in Nevada and Washington, D. C. have taken a very different line, claiming on various legal grounds that their agency, as representive of the U.S. government, is entitled to all water rights on any land now administered by the federal agency.
This federal campaign took explicit form here in Nevada in 1987 when Toiyabe National Forest supervisor R.M."Jim" Nelson formally notified the office of the state engineer that the "United States of America-Forest Service" was claiming a multitude of vested water rights in the southern Monitor Valley.
The basis of the claim, said Nelson, was that the ranchers and homesteaders who moved west in the 1800s, settling the land and putting the water to beneficial use, had been "trespassers" on federal land.
Because the settlers had been "trespassers," he argued, their beneficial use of the water before 1905 -- the key requirement under Nevada law for vested water rights -- had not entitled them to those water rights. However, Nelson said,

the "succession of interest" from those same original "trespasses" did entitle the federal agency to the same water.
"It is clear that much of the water resource on the National Forest was first put to beneficial use for livestock watering purposed by trespassers," he wrote to then state engineer Peter Morros. "It is this succession of interest which was inititiated by trespassers on the public domain ... that support[s] claims of vested water rights by the United States of America-Forest Service."
Making the same basic argument over ensuing years have been other spokesmen for the Forest Service bureaucracy, including -- especially since the southern Monitor Valley adjudication process picked up momentum in 1996 -- a flock of commuting federal attorneys representing the U.S. Department of Agriculture, the U.S. Department of Interior, and the U.S. Department of Justice. Additional rationales have been offered by lead Forest Service attorney Kenneth D. Paur, of Ogden, Utah.
Nevertheless, by the end of the hearings, the federal case reportedly was in total disarray.
Not only did the passage from the 1907 Gifford Pinchot use book transfix the hearing room, according to Nevada ranchers, but passages from a 1905 use book also showed that recent

Forest Service grazing rights practices break other promises Pinchot had made to westerners.
Finally, proposed 'expert' witnesses offered by the federal agencies -- when challenged by rancher attorneys -- were rejected by the state engineer as lacking sufficient expertise to testify.
"This is a real win-win," said Carl Haas, a legal specialist in vested water rights who, with his wife, found one of the Gifford Pinchot use books in a federal Washington, D.C. archive. "I've never seen a cleaner win than that.
"It affects all the western states," he said, "because the Feds are going to have to honor Nevada law now."
Haas helped coordinate legal strategy for the R.O. Livestock Ranch, which owns the 19 vested water rights to which the Forest Service dropped objections.
Next steps in the adjudication process call for attorneys for both sides to submit their final briefs, after which the state engineer will present his findings to the Fifth Judicial District Court of the State of Nevada in Tonopah.
After that court rules, rancher attorneys say, the Forest Service will probably appeal to the Nevada State Supreme Court.

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