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Finding of Fact

Historical and Scientific Analysis

Finding # 1 History of fire in northeastern Nevada

When reviewing the logs, dairies and reports of the earliest expeditions by white man into the Great Basin, we see no evidence that wildfire was a common occurrence during that period. Nor is there any mention by those who settled the area that fires were a problem. There is evidence, however, that the Indians in the Ely area ofNevada started fires periodically for the purpose of removing or thinning stands ofjuniper, but still there was no mention of huge fires such as we have experienced in recent years. In fact, up until the 1970's, most fires (which typically were started by lightening) rarely burned more then an acre or two. Once in a while, when conditions were right, a fire would get out of control and burn as much as one or two hundred acres, but nothing like the fires experienced in recent years. (See Document 52-a. And 52-f.)

The catastrophic fires that have been occurring since the late 1970's, which have resulted in the

loss of millions of acres wildlife habitat, correlate with federal and state policy which has called

for reduced livestock grazing. (See Tony Lesperance Report, Document 52-h. See too

Documents, 52-i., 52-j., 52-1., 52-b. and 43-d.)

Finding # 2 History of vegetative cover in northern Nevada

There are a number of authoritative accounts giving descriptions ofvegetative cover which existed within the Great Basin during the later part ofthe 1880's and early 1900's. The King Expedition, which traveled across Great Basin during 1867, 68 and 69, included a plant biologist named Sereno Watson, who kept extensive notes describing the various plant species he encountered. Capt. James Simpson also throughly described the vegetative cover he saw when he crossed through the Great Basin in 1858 and 1859. (See Document 6-d., see too, Book 13-39,

Report ofExplorations across the Great Basin ofthe Territory of Utah For a Direct WagonRoute From Camp floyd To Genoa, In Carson Valley, in 1859, pp 29,30,31)

Less scientific, but important as well are the writings of Joe Meek, Zenos Leanard, Peter Skeen Ogden, Jedediah Smith and James Clayman, who gave good accounts of their experiences when crossing through the Great Basin. They wrote not only of vegetative conditions, but also of the kinds and numbers of wildlife they were encountering. Later there were the accounts of Lieutenant E. G. Beckwith, Howard Egan and Edward Kern. Collectively, these writings tell of little feed, starving horses and no game. (See, I-a. and 5-b., see also Book 13-39, pp 29,30,31)

Despite modern perceptions by some that the native rangelands of Nevada or elsewhere in the West were hurt or destroyed by the settlement of the region, the opposite seems to be true. The area that is now known as Nevada went from a place where the first explorers said the country could not support their horses while crossing through the Great Basin to an area that was feeding over a million sheep and over 500 thousand cattle in the early to mid] 900's. (See Document I-a., see too, Book 3-1, Northeast Nevada Frontier) In this regard too, one should read the book, "When And If It Rains" (Document II-a. or Book 26-1) which includes accounts of a good many of the early settlers of the West who testified that the rangelands improved dramatically once livestock were introduced. (See too, Document 21-c.)

Finding #3 Custom and Culture, Settlement and Predator Control

The environmental movement is based on the assumption that all was optimum prior to the

coming of white man; that grass was tall, lakes and rivers were crystal clear and wildlife was

evident at every turn. But historical records and first-hand accounts indicate otherwise. When

Jedediah Smith, Peter Skeen Ogden and John Fremont first made tracks throughout the West,

they found the rivers muddy, the grass poor and game hard to find. These men and others like

them, in order to survive, learned to live as the Indians lived, relying at times on insects, their

dogs or horse meat in order to survive. (See Documents, I-a., 5-a., 5-b. And 5-c.)

Once white man began settling the region, many changes began to occur. First, these people from far-off lands had been exposed to ideas and practices developed throughout the world. They had knowledge of agriculture, cloth, metal and gun powder. They had domestic animals, horses, cattle, chickens and pigs. Rather than spending their time moving from place to place they took up land, remained in one place, dependent on their agriculture. Their greatest need was to protect their crops, their pigs, their chickens and their livestock. And this they did with guns, traps, or by whatever means.

By the turn ofthe century every country store across America was selling reasonably priced, 22

caliber rifles. Stevens, Winchester, Savage, Marlin and Remington were making, 22 rifles that

sold for $1. 98 to $7.00 a piece, depending on the make and model. Every boy, white and Indian,

along with their fathers and many oftheir sisters were controlling predators. By 1910 large

numbers of men in every community were trapping during the winter months. School age boys,

too, had trap lines that they tended going and coming from school. Coyotes, bobcats, badgers, skunks and weasels, nearly all fur-bearers were fair game. Crows, magpies, and "chicken-hawks" were shot on sight. Then in 1912 there was a major outbreak of rabies in central Nevada. So bad was the epidemic, that rural families had to keep their children and dogs locked up or fenced in. See Documents, 3-a. through 3-j., see also, Book 3-1, Northeast Nevada Frontier)

By 1914 the rabies epidemic had spread to nearly all the western states. It became a national health problem. In July of 1916, Senator Key Pittman ofNevada sponsored a bill through Congress appropriating $25,000 for rabies control. In the 1930's toxins (primarily strychnine) and airplanes were being used to control predators. The results were phenomenal, coyotes, skunks and crows and other predators became few, while deer herds exploded. In many areas sage chickens could be harvested "by the gunny sack full". Ducks and other waterfowl clouded the skies and song birds were everywhere. (See Book, 3-1, Northeast Nevada Frontier, see also Documents, 30-a., 45-a., 45-b., 45-d. and 45-e., see too, Documents 6-a. through 6-c.)

But then, in the 1950's the federal government began reducing predator control, first by discontinuance of bounty systems, and by requiring absolute proof that predators were destroying livestock before action could be taken, then later by outlawing the use oftoxins, reductions in predator control funds and by not allowing predator control in wildlife refuges and wilderness areas. Such measures have had a profound effect. Not only has the curtailment of predator control helped put thousands of families out of the sheep business over the years, but deer, duck, upland game and song bird populations have declined as well. (See Documents, 55-a., 55-f.)

It is recognized however, reductions in predator control have not been the only factor which has

had adverse affects on local communities. The inability of local citizens to influence outcomes of

public land policy have also had an adverse affect the economic well-being of ranching

communities. (See Documents, 13-a. through 13-c.)

Finding # 4 History of effects of livestock grazing in northeastern Nevada

There never has been the destruction of the range by livestock grazing as has been alleged by so

many within the various resource management agencies, who's purpose it has been to gain a

management position over the western public lands. (See documents 9-a. & 10-a.) There have

been prolonged droughts at times of course, when it appeared that the range was deteriorating,

but then when good years have come, it always seems that there is grass and feed everywhere.

Desert plants are tremendously resilient, and the feed that will grow on the best years can be

phenomenal. (See Document, II-a.)

Finding #5 History of mule deer in the Great Basin

It's not hard to trace the history of mule deer in the Great Basin. The logs, diaries, journals and

other accounts which were written by those who crossed through the American West during the

1800's hardly ever mentioned deer. Some have said that the reason that deer were not seen during that period was because the earliest explorers and trappers were only traveling down the valleys and along the rivers where they would not have seen the deer which were in the mountains. But nearly all the trapping parties had one or two men with them whose responsibility it was to scout the country in all directions, looking for game and new trapping areas. Every stream and every pond that could be trapped, and every canyon that may have held game was

sought out. And when no game was found, as was often the case, then it was beaver tail and horse meat that sustained the trappers. (See Documents, ]-a., see also, book 13-30, Peter Skene Ogden's Snake Country Journals -1824-25 and 1825-26)

The explorers and trappers did find a few antelope from time to time however, but not often. Perhaps the most telling, was the condition of the American Indians at that time. By every account it seems the Indians were so poor, hardly any of them wore moccasins. Nor is there evidence that they had cradle-boards for their little ones. It wasn't that they did not have knowledge of such things; rather they didn't have the material to make them. Apparently, on rare occasions, when the native people of the Great Basin were able to harvest an antelope or deer, the hide of the animal was used for making bags for storing food stuffs which they often carried with them. (See book, 13-39, Report OfExplorations Across The Great Basin ofthe Territory of Utah For A Direct Wagon-Rout From Camp Floyd To Genoa, In The Carson Valley, In 1859,

see too, Document, 7-a. pp 20,21,22 and 23)

Deer did not become plentiful until in the late 1930's -after sheep and cattle had been introduced into the country and effective predator control programs had been put in place. Records kept by Forest Service personnell monitoring the Toiyabe Mountains and Ruby Mountains during the early history of Forest Reserves bears this out. In the Ruby Mountains, 10 deer were seen in 1921-followed by a steady increase until an estimated 3,000 animals were seen in 1939. By the mid 1940's deer numbers on the Ruby Mountains were in the thousands. No one knew how many there were for certain. In California, Utah, Oregon, Washington, Idaho, Colorado, Wyoming, everywhere it was the same, as predator control practices improved, so too were there more wildlife. Deer, sage grouse, song birds, and every pray animal seemed to benefit from predator control. (See pages 5 and 6, document 22-a. See also, 3-a. throughj., see also, 54-a. and 55-d.)

Early history indicates that there were very few, if any, mountain lions in the Great Basin at the time of early exploration and settlement. Research by employees of the Nevada Department of Wildlife found only one early reference, wherein the Territorial Enterprise (Virginia City) on June 27, ]867, reported that a "catamount" was killed in the Six Mile Canyon area. The writer stated that "This is the first animal of its kind we have ever heard of in this region" Apparently, there were no lions seen again anywhere in Nevada until sometime in the early] 920's. (See, Division of Wildlife Comprehensive Mountain Lion Management Plan, /995)

Perhaps one of the greatest testimonies in this regard was that which is revealed in the book

Beltran: Basque Sheepman of the American West. Beltran Paris came to the United States in

1912. Soon after he went to work for the Williams sheep outfit which summered in the Gold

Creek and Bruneau areas of northern Elko County and wintered near Frenchman and Gabbs

Nevada. After working for Williams for several years, Beltran went into the sheep business for himself in Butte Valley. Beltran's brother Arnaud also worked for Williams for a number of years, but later went to work for Baker Ranch, and then the Adams and McGill outfit. This meant that both Arnaud and Beltran had spent a good many years in the outdoors, covering vast areas throughout Nevada, yet, neither Beltran nor Arnaud had seen or heard of a lion until the early


Beltron wrote: "My brother Arnaud was the first to find out about the lions. He was camptending for Adams and McGill and one morning when they were trailing their sheep south to the desert his herder came and told him eight of his big ewes were dead. Arnaud thought maybe they ate something bad so he went over there. He saw right away an animal had killed them. Well, bobcats were worth a little money and he kept two number three traps in his camp. He set them around the dead sheep and then told the herder to move his bunch out of there. The next day Arnaud went back and he sure was surprised. There was a great big lion in his traps. He was pretty scared but the lion didn't do anything. They don't want to hurt their foot. Anyway, Arnaud shot that one and skinned it out. His boss was so happy he gave Arnaud a ten-dollar reward. That was the first lion any of us ever saw in this country."

Historical evidence indicates that the great deer herds of the 40's and 50's and 60's were a product of settlement and predator control -and that mountain lions in Nevada are a product of our deer herds.

Interestingly, according to the Division of Wildlife, Comprehensive Mountain Lion Management Plan (1995), in 1994 a male lion that was radio-collared in Idaho moved 250 miles to central Nevada. Certainly, if mountain lions are capable of traveling so far -if there had been an

abundance of deer in the Great Basin in the 1800's, there should have been mountain lions in the

Great Basin as well.

Finding # 6 History of Sage Grouse within the Great Basin

Perhaps Sage Grouse, is a good indicator for determining the general well-being of a number of

species found within northern Nevada. The period of greatest sage grouse abundance in the

1940's and 50's, coincides with the period when there were the most mule deer, song birds,

rodents, snakes and frogs and so forth throughout northern Nevada. (See, 57-a., 4-a., and 4-b.,

5-b. and 6-b., see too, 45-a., 45-b., 45-d., 45-e., 30,a and 3-a.)

Records show there were no sage grouse seen in the Great Basin during early exploration.

Jedediah Smith never mentioned them when he told of crossing through the Great Basin in 1827.

Peter Skeen Ogden never mentioned them when he was trapping the Humboldt in 1828 and 29.

Zenos Leanard never mentioned sage grouse when crossing through the region now known as Nevada. Nor did Milton Sublet, Joe Meek or James Clayman mention them. (See I-a. and 5-b.)

A few sage grouse were seen in the Great Basin in the 1850's however.

Capt. E.G. Beckwith, while conducting a survey for a possible railroad-route along the 41st parallel in 1854, wrote of seeing "sage cock" on one occasion, while traveling north "on the plain" east of the Franklin River in Ruby Valley. Captain James.H.Simpsion also encountered "sage cock" while crossing through the Great Basin and back in 1858 and 59 --once at Pacific Spring, once in Ko-bah Valley west ofEureka, and once in Spring Valley on their return trip. (See book,

13-51, Report by E.G Beckwith -ForaRailroadRoutSouth ofthe 40thParallel, See too, Book, 13-39, ReportOfExplorationsAcross TheGeatBasin ofthe Territory ofUtahForA Direct Wagon-Route From Camp Floyd To Genoa, In The Carson Valley

Perhaps the best accounts indicating the early status of sage grouse in the Great Basin were those written by Julian Steward and Robert Ridgway. Robert Ridgway, served as the zoologist for the King Expedition during the time when that party was making its geological assessments along the 40th Parallel during 1867, 68 and 69. The significance ofRobert Ridgway'S "ornithology report" or assessment of bird life, which took place over the three-year period when they were covering a good deal of the area between Sierras and the Wasatch Mountains ofUtah, was that, during all of that three-year period, while inspecting one valley after another and climbing mountain after mountain, Mr. Ridgway only mentioned seeing "sage hen" (centrocercus urophasianus) five times. One sighting was on Peavine, just north of Reno, one was near Wadsworth, on the north end of the Virginia Mountains, one was near Fort Ruby, where Ridgway observed a "sage hen" being pursued and then taken by two eagles, one was near Secret Pass at the north end ofRuby Valley, and one was near the City of Rocks in southern Idaho (See Document, 6-c.)

Equally important to Robert Ridgway's work was that of ethnologist Julian Steward. Between 1931 and 1936, Julian Steward made numerous trips throughout Nevada, southern Idaho, western Utah and the Owens Valley area of California, interviewing native people and recording, among other things, the food items used by all the various groups in each of the valleys he visited. Most ofthe people he interviewed were in their 70's or 80's. So most ofthem were born in the 1860's or 70's, and had gained much of their knowledge from their parents and grandparents. (See Document, 7-a.)

The significance of Julian Steward's work was in discovering testimony showing just how scarce game was in the] 800's. As an example, in all ofMr. Steward's interviews, elk are mentioned

only once, and that was in regards to hunting elk in the area of Yellowstone. Sage grouse was only mentioned once as well, and that was of Temoke, hunting sage grouse in Ruby Valley.

In contrast to the above, persons living in the 1940's and 50's and 60's told of encountering large numbers of sage grouse during their lives. (See testimony of Frank Temoke, 45-d., Frank Delmue, 45-c., Steve Sewell, 45-d., Jake Reed, 17-b., Dave Hage, 45-a., Raymond Mendive, 3-a., and Jack Walther, 45-b.).

Finding #7 History of bitter-brush, then and now

Testimony by the earliest trappers and explorers regarding vegetative cover in the Great Basin,

mirrors, to a great degree, testimony regarding sage grouse. By every account, the country was

barren and the feed was poor in the] 820's and 30's. But then, it seems that those who traveled throughout the Great Basin in the 1850's and 60's, found somewhat better feed. Perhaps the country, at that time, was experiencing dry periods and wet periods, no different than what has been witnessed since that time.

The more detailed records of Captain James H. Simpson and Sereno Watson indicate that the vegetative cover of that period was similar to that of recent times. Capt. Simpson, after traveling from Camp Floyd in Utah to Genoa and back again in 1858 and 59, described the plains and valleys as being vast areas dominated by sagebrush, with very little grass. He wrote of mountains ranges clothed with pinion and juniper, with some quaking aspen in the larger basins and draws. He also wrote of mountain mahogany, and of timber being on the tops of some of the mountain ranges.

Sereno Watson's accounts were more detailed and scientific than were those of Capt. Simpson. Records indicate that Watson found bitterbrush, (purshia tridentata), on nearly all ofthe

mountain ranges from Sierras to the Uwinta Mountains in northern Utah.

Some argue that overgrazing ofgrasses in the late 1800's and early 1900's caused sagebrush and bitterbrush to increase throughout the Great Basin. Others say that bittertbrsh was overgrazed during that same period by sheep. Regardless, when the agencies began restricting livestock use in the 1970's, it generally took only a year or so of rest, and the plants, from grass to browse, would burst forth with lush foliage. Pictures taken at that stage were used to show how the range had improved. However, what is not shown is how these same plants within a short time become decadent and unproductive when left ungrazed. (See Document 54-a., Vegetative Stagnation in Three-Phase Big Game Enclosures, by Paul T Tueller and Jerald D. Tower) In truth plants of all kinds need to be routinely grazed or hedged in order to remain productive.

Finding # 8 Effects of wildfire has had on bitter-brush communities and mule deer throughout Nevada

The biggest changes in plant communities and range condition have come about since the 1970's, after the agencies began cutting permits and removing livestock from the range. It was then that we began experiencing the out-of-control fires that have been raging throughout the west in recent years. And it has been because of the fires that we have been losing so much of our range and wildlife resources (as Dr. Tony Lesperance predicated would happen, back in 2000). (See Document, 52-h., see too, 52-a., through 52-f., see too, 52-e. & 52-f.)

Some have said that mule deer can live in areas where there is no bitterbrush, and maybe that is

so, but for the most part, it has always been in those areas where there have been good stands of

bitterbrush that mule deer have flourished. In northen and western Nevada in eastern Nevada in

, ,

Utah, Idaho and California, wherever there have been good stands of bitterbrush, and where

effective predator control programs have been ongoing, is where there has been good deer

production over the years. (See Document, 54-b.)

Every year it seems, we are losing more and more bitterbrush. Which is something that we can no longer allow to happen -for in truth, we have lost most of our best deer habitat already. Why is that you might ask? Well its simple real1y, wherever you see bitterbrush growing, you can be assured you are in an area that not only grow good bitterbrush, but grows a lot of grass as well. Which means, that if little grazing has occurred and lightening strikes, it is these areas that burn first. (See Documents, 52-b., 52-e. and 52-f.)

However it doesn't end there, for the agencies then require that such areas not be grazed for at least two years, even though such policy is not backed by science. And so, unfortunately, the stage is set for more and more cheat grass growth, which in turn sets the stage for more and more wildfires, which spread over more and more area. And so, on and on we go, destroying more and more wildlife habitat, destroying more and more of our native rangelands, destroying more and more deer and sage grouse habitat, while at the same time endangering and destroying the economic viability of ranching operations.(See Document, 52-g.)

Finding # 9 Importance of private land ownership and the effects of such regarding the preservation of bitter-brush communities

If a person drives around the base of the Ruby Mountains today, that person might notice that there are areas along the foothills which appear darker than others. These darker areas generally include a good stand of different kinds of brush -mostly bitter-brush. It may also be noticed that in contrast, there are other areas where it appears that such stands of brush have been removed by wildfire. Interestingly, in most instances, the areas where the brush has been removed by wildfire are also the areas that are managed by the Forest Service, whereas the areas that remain covered with healthy stands of mountain sage and bitterbrush are generally privately held lands.

Simply put, the reason for all this is, while it has been the policy ofthose within the federal

agencies over the last 20 years or so, to leave fifty percent or more ofthe available feed within

al10tments each year -which policy has led to the situation where we are now experiencing the

terrible fires we are having, the ranching community has continued to graze their lands in a

manner which prevents excessive fuel buildup.

Which indicates, of course, that its been a very good thing that lands surrounding the Ruby

Mountains have been in private ownership for all these years, for if there hadn't have been, the

deer would have suffered even more than they have over the last several years.

For years, ever since the early 1940's, the Ruby Mountains have been recognized as the finest deer producing area in the state. Certainly, there are other mountain ranges that have the same potential for producing as many deer as the Ruby Mountains do. So why the difference? It's obvious really, ranching and private land management have not only had a positive effect on reducing wildfire over the years, but ranchers also do a good job of controlling predators, which does not often occur on Forest Service or BLM lands, because of ever increasing regulation and public pressure to protect predators.

Perhaps what is needed is for more lands to be transferred into private ownership, rather than the other way around.

Finding # 10 Importance of solar reception, and what happens when overstory becomes excessive

If any one of us were to walk out to our front yards during summer and place an object on the ground covering an area, say, 6 "long by 6" wide, and we were to leave it there for three or four

days, we would find at the end of that period, that the grass which was covered by the object

would have turned yellow. And we know that if we were to leave it there long enough, that the

grass would completely die. The reason being of course, plants simply cannot survive without


The same thing happens when a layer of dead grass is left on a mountain meadow from year to

year, within a short time fine stemmed grasses and plants of lower stature, such as dandelion and

clover, soon die and plant diversity is lost. (See Documents, 23-a. through 23-h.)

Rangeland grasses also deteriorate and die away when they are not impacted as they should be by regular grazing. It's true, overgrazing can lead to weakened pants and reduced production. But the opposite is even worse. Take the 1940's and 50's as an example; right at the time when we were running the greatest number of sheep and cattle on our rangelands, was when we had the most deer and sage grouse in the country. And they all did well too. In fact, all evidence indicates that the sheep and cattle and deer were healthier and bigger and fatter than then they are today. And so, what dose this all mean, except that the reductions in grazing that have occurred since the 1970's has been wrong from the beginning. And now, the only thing we are accomplishing by continuing to ignore the truth is to cause more and more fuel buildup on our rangelands -which not only jeopardizes the public health and safety of our citizens, but leads to the loss ofthousands and thousands of acres of prime wildlife habitat as well. (See Documents, 23 -a. through 23-h., see too, Document 21-c.)

Finding # 11 Historical effects of grazing on riparian areas

It became popular in the 1980's for the Forest Service to set utilization standards for grazing on riparian areas. For example, if a rancher turned his livestock out on the range where there were riparian areas, such as along a creek or within a small meadow, and his cattle ate more than 40 to 45 percent of the feed in one of the riparian areas, it didn't matter if the cattle had only been in the pasture for a very short time, or that less than ten percent of the feed had been utilized on the surrounding lands, the rancher was to remove to his livestock immediately, for if he did not he would have his permit reduced by as much as 25 percent. Needles to say, such policy has caused great hardship for a good many permittees. (See Documents, 13-a. through 13-c. and 17-a. through 17-c.)

The discerning thing about the whole affair is, after nearly a decade had passed it was learned, that the very policy, which had by then put a great many people out of business, was not supported by sound science. And in fact was repudiated by studies which had been completed at the Starkey Experiential Station in Oregon -which studies showed conclusively that the removal and reductions of livestock use on riparian areas could not be supported scientifically. (See Document, 19-a. through 19-c.)

Over a period of 12 years, graduate students and scientists measured the effects of cattle grazing on every riparian value imaginable. They applied rest rotation grazing, season long grazing, short duration grazing, deferred rotation, and non-use. They monitored and determined effects on soil compaction, infiltration rates, streambank erosion, sediment loads, biological content of the water itself, effects on fish, impacts on streamside vegetation, vegetative health and feed production. And when it was all said and done, they found that nearly all riparian area values were not harmed, and if anything, benefitted from livestock grazing. An Environmental Impact Statement addressing these issues should be initiated as soon as possible so as to prevent continuing degradation of riparian areas found throughout the Ruby Conservation District.

Finding # 12 Knowledge gained more recently

It has been more than twenty years now, since the Forest Service first implemented it's riparian utilization standards throughout much of central Nevada. Great changes have occurred since that time. The sheep industry is nearly nonexistent now. Nearly half the cattle which once grazed upon the public lands in the 1950's are now gone. And as a result, great social-economic harm has been done to the livestock industry throughout Nevada. (See Documents, 17-a. though 17-c.)

Adverse impacts on environmental values are also a concern. We know now that because of the removal of livestock from riparian habitats, such areas have now become overgrown with dead and decadent willow growth, which shades out and the majority ofgrasses and other understory that existed formerly. In many places, such detrimental overgrowth has made it almost impossible for a person to get through thickets and creek bottoms, even on foot. (See Documents, (See Documents, 20-a. and 20-c.) See also testimony ofJohn Rosenlund, Document, 23-d.)

Accumulative long term and short term impacts are becoming more and more evident year by year, including degraded riparian habitats, loss of riparian understory, increased fuel buildup, ever increasing loss of wildlife habitat -and a range livestock industry that is now on the verge of collapse because of adverse policy set forth by state and federal agencies.

Finding # 13 Possible reductions in water flow -need for research

There is a good deal of scientific information which indicates, that when grazing is reduced or

livestock are removed from typical mountain pastures in Nevada and elsewhere throughout the

Inter-mountain West, woody vegetation increases to such a point that more often than not, causes, significat reductions in water production. (See Documents, 43-a. through 43-f.) Therefore it is a primary objective of the Ruby Conservation District, to initiate research in cooperation with state and federal agencies, seeking information for determining possible reductions in water flow or water production, that may be occurring as a result of reduced levels oflivestock grazing on watersheds within the District.

Finding # 14 Mismanagement on many of our nation's wildlife refuges

No where, at any time, in the history of the world has socialist management ofland and resources worked. It did not work in Russia, nor is it working here in the United States. Yet more and more lands here in the United States are being put into the hands of government -to the detrment of wildlife, to the detriment of our economy and to the detriment of the future ofthis nation. (See Documents, 40-a. through 40-f., see too, Documents, 22-a. through 22-i.)

Findings # 15 Importance of removing mature vegetative cover

Those who hunted back in the 1950's and 60's report there were not only a lot more deer at that time, but that the deer were fatter than they are today. When skinning a deer back then, there would always be a layer of hard fat, an inch or so thick over the rump -something you never see today. Much ofthe difference appears to be the greater number of sheep that were present in the country, in the 1950's and 60's. Back then it seemed, there were bands of sheep moving through the country nearly everywhere, and as they would move through, they would take a little from nearly every plant. They would nibble the tops off of the grass, they would eat the weeds back, they would take a little quaking aspen, a little chokecherry, and a little rosebush, nearly everything. And then they would move on, returning again the following year. It was the very closest thing to being the ultimate way of achieving short duration grazing ever known. The various range plants beneficed tremendously. It would not be long until all the vegetation that had been impacted was bursting forth again with new foliage, which nearly always was richer in nutrient value than it would have been if all the plants had not been hedged. (See Documents, 45a., 55-a., and 53-e.)

In the 1970's, some began suggesting that livestock were hurting the range -that cattle were taking too much of the deer's feed. Their focus seemed to be on bitterbrush -claiming that there was little winter feed for deer. Soon, demands were being made, calling for the removal of livestock from the range. Finally, a study was initiated to determine the truth of the matter, whereby there were exclosures built at different locations throughout the state, so that cattle could be excluded, and the effects of grazing could be determined. The results were not what many expected. Instead of finding that there was more feed produced when livestock were excluded, the plants (mostly bitterbrush) yielded less production. (See Document, 55-a.) This finding confirmed that vegetation if left unpruned becomes decadent and unproductive. The most effective way of pruning range plants is by livestock grazing.

Nothing demonstrates this better than those areas where livestock have been removed altogether. Wherever livestock removal occurs, it is not long until, deer, elk, and even birds began to leave the so called "protected areas" for places where livestock grazing is ongoing. Think of it, if you

were an elk for example, would you want to feed in an area where every time you reached for

mouthful of grass, you would get a mouthful of feed which was half dead matter left from the

previous year's growth? Of course not. If such were the case, it would not be long until you

would move to an area where the majority ofthe feed had been removed the year before. This is

true for deer, sage grouse, blue grouse or any other animal. Plants of every kind are more

palatable, healthier, and more nutritious, when areas are grazed by domestic livestock (See

Documents, 22-a., 22-b., 22-f., 21-d., 45-g., 23-a. and 23-c.)

Finding # 16 Importance of grazing impact on sage grouse production

In 1986, Carol Evens completed a thesis in partial fulfillment of the requirements for the degree of Master of Science in Renewable Natural Resources, titled, The Relationship of Cattle Grazing to Sage Grouse Use ofMeadow Habitat on the Sheldon National Wildlife Refuge. Perhaps this study, more than any other, depicts the importance of grazing to sage grouse.

The study found that sage grouse tend to avoid meadow areas of dense rank vegetation but would use areas once they were "opened up" by grazing, particularly late in summer when sage grouse nutritional needs are met by eating succulent regrowth, high in protein, which is found to be more prevalent where livestock have been grazed.. (See Documents 3-b., 45-g., and 45-h., see also, Document 23-a.)

Finding # 17 History of cheatgrass and the effect its had on wildfire frequency and intensity within northern Nevada

There has been a lot of criticism of cheatgrass in recent years -that it is nothing but a weed that

crowds out native vegetation, serves no useful purpose, and causes increased intensity and

frequency of wildfire. Many even say that it has been the advent of cheatgrass that has caused the

great increase in catastrophic fires which we have experienced in recent years.

It is true, when rangelands are not grazed properly, cheatgrass can act as a flash fuel causing wildfire to occur more often and with more intensity than would be the case if only native vegetation were present within plant communities. However, for the most part, what is being said about cheatgrass today is myth. First of all, cheat grass is a good source of feed, even when it is in a cured condition. Livestock, like people, tend to like a variety of foods. Some plants, like shrubs and browse, are often high in protein while dry grass is often a good source of energy. So if a cow, or a horse, depending on the kind of country they're in, can eat a little desert shrub or maybe some grease-wood -or if they are in the mountains, some quaking aspen, or rosebush or chockcherry, along with cheatgrass, they get along fine. In fact, it is not uncommon to see cattle or horses during winter on a cheatgrass range, that look better than cows and horses that are sometimes being fed a full ration of hay during winter months. (See Documents, 51-a. and 51-b.)

And, as far as the theory, that cheatgrass crowds out native grasses, is concerned, there is considerable evidence indicating that such is not the case. Beginning in 1979, there was a 14-year study done in southeastern Oregon soon after scientists found two isolated areas deep within large lava flow areas where livestock had never grazed, nor had cheatgrass been introduced. During the study several things were learned. First of all, contrary to popular belief, it was found that the frequency of plants (number of plants per square yard) was not what had been expected. At the Eastern Site it was found that 59 percent of the ground was barren of vegetation, while at the West Site, ground barren of vegetation ranged from 84 percent in 1980 to 76 percent in 1991. (See Document, 50-a.)

These findings support what the earliest explorers and trappers had to say about the country in its

pristine state. Jededia Smith, Peter Skeen Ogden, and Fremont all described the country as baron and unproductive. (They also support findings of Steve Rich, see Document 21-c.)

Most significant was the increase in cheatgrass which occurred at the West Site beginning in 1980. Apparently, there was an unintended introduction of cheatgrass by the scientist themselves. Soil previously barren of vegetation became populated by cheatgrass, yet no loss of perennial grasses, forbs, or shrubs was noted during the remainder of the study.

The reason we are experiencing the huge catastrophic fires of recent times is not because there is more cheatgrass around than was back in early part of the 1900's -cheatgrass has been around for a long time. The problem is reductions in grazing. lfwe were to allow livestock grazing to occur as it did back in the 1940's, 50's and 60's, we would not have the huge catastrophic wildfires we are now experiencing. (See Document, 52-h.)

Finding # 18 History of western settlement and the establishment and recognition of road rights-of-way, ditch rights-of-way, mineral claims, water rights, and the right of bonafide residents and settlers to the use of wood, stone, gravel and clay

Up until the time when settlement began in earnest west of the Mississippi, it had always been the practice of Congress to sell large tracts of land to speculators who in turn would sell lands to those who wanted a place of their own. This of course, had never gone well with those who were settling the land. So when it was learned that Mexico and Canada were issuing patents in recognition of claims of land and mineral rights, so that lands would be claimed under the name of either Mexico or Canada, it wasn't long until representatives in Congress began receiving letters from their constituents urging the passage of legislation recognizing the right of preemption suggesting, that, should the citizens of the United States not be allowed the right to lay claim to lands, water rights and mineral deposits on the open lands in the West, then, perhaps many settlers would have little choice, but to file claims with the Mexican or Canadian government. Not long after, Congress did began passing laws recognizing peoples right to take up homesteads and lay claim to mineral rights. (See Document, 16-a. and 16-b.)

However, it was not until William Stewart, the first Senator from the newly formed State of Nevada, introduced a bill in Congress on July of 1866, that mineral claims, claims to the use of waters which arose on public lands, claims of ditch rights-of-ways, and road rights-of-ways were fully recognized.

The 1866 Act, did not however, establish procedure whereby settlers and miners could file their claims with the federal government. Instead, language within the 1866 Act required that rights of settlers be recognized "by local law and custom and rules of the courts". Which language was soon interpreted to mean, that, it was to be the states, which were to establish mechanisms for the recognition of claim of rights on the open and public lands found throughout the western United States. And so it is to this day, that State law dictates the manner by which claims for water rights, road rights-of-way, ditch rights-of-way and mineral claims are to be recognized and established.

Finding # 19 History, of the recording of claims of road rights-of-way by the general public and county commissioners and the attempt by Forest Service personnel to extinguish such rights

The fact that it has been the goal of nearly every official working for the Department ofInterior and the Department of Agriculture since the inception ofthe concept that the public lands should be brought under the control ofthe United States government, that all rights historically established, should be terminated is not unclear. (See Document, 9-a. & la-a.) Conflicts between rights holders and those within Interior and Agriculture, who believe that the government should have full and complete authority over all government resources have been in constant play since the very beginning. (See Documents, 12-a. & 12-b., 13-a. through 13-c., 15-a. through 15-d. and 18-a. through 18-c.) (See too, 24-a. through 24-d., 25-a. trough 25-d., 26-a., 27-a., 28-a. through 28-g., 33-a.& 33-b.) (Also, see the book, Storm over Range Land) In truth, the history ofthe USDA Forest Service and Bureau ofLand Management is a history of attacks on the range livestock industry.

It was for this reason that citizens ofElko County wanting to lay claim to road rights-of-way, filed maps marked, Map Case 328522, Exhibits A-I through T-l, Sheets 1 through 40, at the

County Recorders office, on September, 26, 1992.

And it was for this same reason that the Elko County Board of Commissioners set forth claims to

these same roadways by Resolution No. 14-98 on the 61h day ofJanuary, 1999.

As well, it is the finding ofthe Ruby Conservation District that said roads as claimed by citizens of Elko County and the Elko County Board of Commjssioners, are roads which were developed and used during the very early days of settlement for the purpose of securing wood, stone and other earthly materials from the public lands for the purpose ofaccomplishing settlement; and that such roads, and all of them, were established long before Forest Reserves were created; and that such roads, and all of them, continue to be used for a variety of purposes, including fire protection, hunting, access to water diversions, fence fixing, caring for livestock, prospecting, mining, moving livestock, weed control, pinenuting, gathering wild berries, post cutting, wood gathering, outings, educational events and sightseeing, and are in fact, roadways which are recognized pursuant to the Act of July 26, 1866. Which rights are best understood when reading the following decision written by Federal District Judge, Peirson M. Hall in 1957.

In the case UNITED STATES v. 9,947.71 ACRES OF LAND, Federal District Judge, Peirson M. Hall wrote; It ... arises from the sheer logic ofthe proposition that, when the government granted mining rights on the vast mountainous, and often impassable, areas of the west which were in public domain, assessable only by passing over the public domain, it granted, as a necessary corollary to mining rights, the right not only to pass over the public domain but also a property right to the continued use of such roadway or trail, once it was established and used for that purpose. To realize the force ofthe proposition just stated, one need but to raise their eyes, when traveling through the West to see the innumerable roads and trails that lead off, and on, through the public domain, into the wilderness where some prospector has found a stake (or broke his heart) or a homesteader has found the valley of his dreams and laboriously and sometimes at very great expense built a road to conform to the terrain, and which in many instances is the only possible surface access to the property by vehicles required to haul heavy equipment, supplies and machinery. Ifthe builders of such roads to property surrounded by the public domain had only a right thereto revocable at the will of the government, and had no property right to maintain and use them after the roads were once built, then the rights granted for development and settlement of the public domain, whether for mining, homesteading, town site, mill sites, lumbering, or other uses, would have been a delusion and a cruel and empty vision, inasmuch as the claim would be lost by loss of access, as well as the investment therein, which in many cases of mines required large sums of money, before a return could be had."

Finding # 20 Importance of road rights-of-way to ranchers, mining and recreationist

The founders of this nation did not want the people to have to go to the government to be permitted or licenced before they could do, or accomplish things. They wanted the people to have "rights" so that they might be secure in their investments and their ability go forward and get things done. They didn't want the people to be beholden to the government for every little thing. That's why our fathers and our grandfathers left their homelands. That's what freedom was all about. They knew from experience, that once a government, or a king gains control of

peoples lives or their businesses, via permitting processes, or by regulation, or both, and there is

no longer recognition of property interest, then soon comes economic stagnation, favoritism,

corruption, payoffs and tyranny.

That's why, during the early history ofthis nation, and during western settlement, that such rights as the right of persons to use certain waters, or to clean their ditches, or to use certain roads were granted and recognized. When the settlers arrived in the unsettled West, there were no coal mines, saw mills, or lumber yards. There was only the material at hand, and so the settlers took up their shovels and their axes and they went upon the mountains and they cut logs and poles for

making their homes, their corrals and their outbuilding, and they used the clay from the valley floors for their roofing.

And soon the pioneers were turning their livestock upon the rangelands, and economically viable units were born. To farm in the harsh environments found in the West was not always feasible, but the envirorunent did lend itselfto raising cattle and sheep. And soon there were mines and mining operations, and towns, and a railroad that crossed through the county. And so more roads were developed and cattle and sheep were driven from one range to another, or from certain ranges to various towns and to shipping points And for anyone to say today, that there was not a road or trail created up every canyon and every draw, long before the Forest Reserves were created, is to avoid the truth and ignore the past. And to say that such was bad for the envirorunent or bad for wildlife, is also to ignore the past, and to ignore the truth.

Finding # 21 Right of due process

One ofthe greatest infringements in individual rights, that has occurred, regarding public land management and oversight by the Federal government has been the outright abolishment of a citizens right to due process. Somewhere along the line, it became acceptable in the minds of many court justices and within the various agencies, that goverrunental actions could be arbitrarily imposed so long as the "experts" within goverrunent "thought" certain actions could be benificial and by so doing, have been ignoring altogether the peoples right that evidential hearings be held for determining possible infringement on investment backed expatiations; or determining by scientific method, whether or not a public good would in fact be achieved once the action was advanced.

Such abandorunent of the peoples right ofdue process runs so foul to the original intent ofthe

notion of free government that it should not be tolerated at any time, any place, or at any level

within our society. And particularly, when law is now in place which calls for such processes to

occur under the United States Administrative Procedures Act, and / or the Nevada Administrative

Procedures Acts.

Finding # 22 History and effects of off-mad or four-wheeler traffic on the Ruby Mountains and elsewhere within Ruby Conservation District

It is the finding of the Ruby Conservation District, that ifthe Forest Service is to follow mandates

as are set forth in the "Final Rule" dated, November 9, 2005, which states; "Current regulations

prohibit trail construction Sec. 261.10(a) and operation of vehicles in a manner damaging to the

land, wildlife, or vegetation" , then it would be the new "four-wheeler" roads that would be

considered for closure, and not the existing RS 2477 road rights-of-way which extend through private lands. For it is the very nature offour-wheeIers, that they must be driven up a ridge in a perpendicular manner or else they will tip over, which cause tracts to be created whereby higher than ordinary erosion occurs.

Clearly, if the new rule calls for the protection of rights-of-way which are recognized pursuant to RS 2477 of the United States Code, then all roads which were constructed by those who settled the lands prior to the creation ofForest Reserves, which roads have now been recognized by Elko County, must be recognized by the Forest Service.

The importance of keeping traditional road rights-of-way open for continued use can not be overstated -for in truth, it is these roads, which were created and made better by the use of teams traveling to and from the mountains, hauling logs, and firewood. And because it was not easy for persons with a team and wagon to make their way up a canyon and back with a loaded wagon, the very best routes were taken, following terrain which offered the least obstacles and steepest grades, that roads were created which cause the least amount of erosion possible.

Finding # 23 Importance of road rights-of-way and livestock grazing -and how each serve to protect against out-of-control wildfire and destruction of native plant communities

Road rights-of-ways traditionally used and recognized are not only important in that they allow

for quick access to areas where wildfire may start -but they often serve as fire breaks as well

perhaps not by themselves entirely -but can, with little more effort, be made to playa significant

part in stopping the spread of wildfire.

Livestock grazing too, is critically important, not only because grazing removes such a large percentage ofthe fuel which feeds wildfire, but also because livestock create trails at intervals throughout allotments which tend to cool fires down and make them burn more slowly. It can not be denied that when fires burn cooler and more slowly, they are far easier to bring under control. And too, it must be remembered, when fires do burn at cooler temperatures, there are fewer plants lost, and when there are fewer plants lost, the range generally returns to its Oliginal state sooner because of the natural reseeding that occurs during years that follow.

Finding #24 The situation ranching families find themselves in under present circumstances

As it stands today, if a member of a ranching family happens to start a fire, which then spreads to

lands managed by either the Forest Service or Bureau of Land Management, the cost for fighting

the fire can be billed to that person or ranching family who owns the premises where the fire

started -which cost can be in the hundreds of thousands, or even millions of dollars. Yet on the

other hand, if a fire happens to have started on pubic lands, for whatever reason, and it crosses

over onto private land, and is to burn buildings, haystacks and standing feed, or even a home, it is unlikely that the ranching family effected will be reimbursed.

And then you couple that with the fact that it is the government that is now creating the very situations which are causing the largest, the most ferocious and the most catastrophic fires ever known since the time offirst settlement. Plus the fact that its been the unwritten policy of both the state Department of Forestry and the BLM and the Forest Service to let fires burn unless it threatens a home or a structure. Then you began to understand what a terrible situation ranching families are facing today.

This is why it is so critically important that the right for local communities to regain control over

the affairs of their local communities once more. Its all about the right of local self government,

and the right to protect ones property, ones life and ones family.

Finding # 25 Importance of seeding creasted wheat grass to areas which are burned over by wildfire

The practice of seeding crested wheat grass to rangelands began in northern Nevada in the late 1940's and early 50's, and today some of the very best deer habitat is found in those areas which were seeded to crested wheat grass in the past. It is a fact, that bitterbrush and many other important plant species, including native grasses, come back sooner, and do a lot better when crested wheat grass is planted. And since crested wheat grass burns cooler, if fires do reoccur, they will burn with less intensity than they would otherwise And too, of course, when a fire burns cooler and with less intensity, fewer bitterbrush and native grass plants are lost. There is no question, the planting of crested wheat grass is a win, win situation.

As for sage grouse. The whole notion that crested wheat seedings are bad is false. In the 1940's there were sage grouse everywhere in Ruby Valley; and there were a good many sage grouse strutting grounds as well, both on the west side of the valley and on the east side of the valley. Most of the strutting grounds which were in existence at that time were located on the white sage flats south ofMedicine Spring on the east side of the valley. Since then, there has been no change in vegetation cover in that area, yet sage grouse no longer strut there. Today there is only one known sage grouse strutting ground being used in south Ruby Valley, and that is located within a crested wheat seeding south ofHarrison Pass. Today's problem is not that we have been destroying sage grouse strutting grounds by seeding creasted wheat grass; the problem is we have far too many predators killing sage grouse. Without question, seeding burned over areas to crested wheat grass is the best possible solution for obtaining desirable condition for the benefit of a wide variety of wildlife.

Finding # 26 Local volunteer fire fighters shall be allowed to use whatever equipment which is at their disposal when fighting wildfire within the boundaries of the Ruby Conservation District

There is probably no one, anywhere, that faces greater threat to life and property than those citizens now living in Ruby Valley, whose homes and ranchers lay adjacent to the Humboldt National Forest. Not only because the Forest Service has reduced livestock grazing, which in places is causing two or more years of fire fuel to accumulate, but also because of current Forest Service policy, which often disallows private individuals the use of farm and ranch equipment to suppress wildfire on Forest lands until an officer ofthe Forest Service approves it.

In the past, citizens ofthe valley have been told, that the use of dozers and loaders is restricted at times so as to protect archaeological sites, and that permission must be granted before any equipment can be used for the suppression ofwildfire on public lands. (See Documents, 52-a. through 52-d.)

It is the finding of the Ruby Conservation District, that there is no group of people that are better acquainted with the history and archaeological features ofRuby Valley than are the people that live there. And in that regard, and to that end, it has been determined that the only significant archaeological sites thus far identified in the valley are those that are located on private lands. No one living within the valley is aware ofany significant archaeological sites that are, or may be, located on Forest Service lands.

Therefore, it is the recommendation ofthe Ruby Conservation District that all responsible

agencies adopt policy, allowing for the use of heavy equipment immediately when undertaking

wildfire suppression within the Ruby Conservation District.

Finding # 27 Importance of the right of individual home and property owner to fight wildfire in the traditional manner as they have since the west was settled

For anyone reading the Declaration ofIndependence, it becomes abundantly clear that one ofthe greatest problems those living within New England plior to the American Revolution faced was not being able to freely conduct local self government. Not only were King George and the people ofGreat Britain imposing whatever laws they so desired upon the people ofNew England, but in addition, they were interfering with the peoples ability to adopt policy and ordinances for the protection and management of everyday affairs within their communities.

In many ways, the situation the founders found themselves in was not much different from that which many persons living within the public land states face today. Think of it. Ifthose living in the various communities in New England needed to put in structures for the purpose offlood control, as and example, the local people had no way of collecting taxes or passing law or policy as a means of accomplishing such an objective -for it was the people ofEngland that had control, and for them such concerns were of no interest.

That's what persons living within the rural areas ofNevada face today. For when it comes to the Public Lands, its not the local people that have the say -rather its people living in New York or Denver or Las Vegas that get to decide just how the majority oflands that lay within our communities are to be governed, and they certainly aren't going to be effected by wildfire; or because there may be too many predators taking down calves; or that the lack of grazing on the Forest lands is causing reductions in water production -or that ranching families are no longer able to make a living because of some unfair act by the BLM or Forest Service. And so those who live in the rural areas ofNevada go on and on, year after year, facing the fact that they don't really have control over fire policy, or grazing policy or anything else that goes on the public lands upon which they are dependant.

As it stands today, if the Forest Service so chooses, local citizens within the Ruby Valley can be

denied, even the right to go onto the public lands with their tractors or a shovel without agency

permission. Issues involving the Public Health and Safety and general well-being of local

communities must be decided by those who's lives and property are the most effected. To do

otherwise runs in direct conflict to the most dear principles of a free and just society.

Finding # 28 No

Last modified on Tuesday, 12 May 2009 02:47
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