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Hydrologists present Humboldt modeling update for water management

ELKO — The amount of water allowed to be withdrawn from the Humboldt River Basin exceeds the yield, and the Nevada Division of Water Resources is in the process of modeling the region’s hydrogeology so the state can better govern the resource.

Scientists from the U.S. Geological Survey and Desert Research Institute are completing the study, and representatives from the organizations updated shareholders on their progress during workshops Jan. 9 in Lovelock and Winnemucca, and Jan. 10 in Elko.

“These guys — the USGS and DRI — are doing a good job and are very thorough,” said Jon Benedict, a Nevada Division of Water Resources geologist, after the Elko workshop. “We are in good hands as far as the technical expertise that we brought to bear.”

After the drought of 2012-2016, the issue of over-allocated water resources came to a head as downstream senior surface water right holders said junior groundwater pumping upstream took away from their allocations. The Pershing County Water Conservation District filed a writ petition in 2015, amended 2016, requesting that the state curtail water in over-appropriated basins.

The perennial yield of the Humboldt River Basin is about 429,000 acre-feet while appropriations total about 716,000 acre-feet, research shows.

In response to the writ petition, the state initiated the four-year study costing $2.8 million to better understand the water resource then use the data to create a management system by 2020. Nevada Division of Water Resources Deputy Administrator Rick Felling visited Elko in July 2017 to gather input on how the possible regulations could affect small-business owners and describe the history of the state’s water rights, according to Elko Daily Free Press archives.

During the January Elko workshop at the Nannini Administrative Building — attended by more than 25 people, including representatives from Elko area governments, ranchers, mining companies and conservation groups — researchers covered the general principles of groundwater and evapotranspiration from plants, and showed progress on models for the upper, middle and lower basins.

The results should come together to create an understanding of stream depletion and how governance would affect the river system.

Jake Tibbitts, natural resources manager for Eureka County, asked the presenters if the estimated acre-feet of water pumped yearly counted gross or consumptive use total. He pointed out that the studies credited mines with reinjecting water back into the resource while irrigators didn’t seem to be judged the same.

“Why not adjust irrigation for consumptive use?” he asked, explaining that the difference risked labeling irrigation as a high water user.

One of the panelists responded by saying that mines and geothermal operations must reinject water according to their permits, and the data is well-documented. Benedict added that a management plan would look at consumptive use for irrigators, as well.

“The concept would be that it is equitable and fair,” Benedict said.

Other concerns voiced during a question-and-answer session included whether high-water-use plants would be removed, the effects of drilling new wells and which pivot systems were most efficient at irrigation.

Tibbitts said he looked forward to seeing more detail in the reports so he can better connect how the science will inform the regulations because “that all will have bearing on someone’s livelihood in the future.”

The research team expects to have a draft report by the first quarter of 2019, followed by a review process. The final report could be finished as early as the end of that year or 2020.

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Sober living facility gets conditions for license

ELKO — A group home for recovering drug and alcohol addicts could be allowed on Winchester Drive in a residential area if the owner can meet conditions ordered by the Elko City Council.

Stacey Payne brought her lawyer, Kenneth E. Thomas from Las Vegas, to the city meeting Jan. 9 after the city planning commission denied a conditional use permit Dec. 5 for a sober living facility through her business LYFE Recovery Services.

Her attorney said that laws protecting fair housing and Americans with disabilities make denial of the sober living facility illegal on the federal level.

The commission considered city code and “good will” of the applicant in its decision, said City Planner Cathy Laughlin, who explained that the business model didn’t match descriptions in city code, that parking was insufficient for the potential number of residents, that the applicant had missed filing deadlines and was advertising rooms for rent through Airbnb.

“They denied it because of the extensiveness of the use of the 22 people living there and the limited amount of parking,” Laughlin said after the meeting. “We weren’t in violation of any laws … because we allow it in residential zoning district. It just needs to be with a CUP.”

Payne began the administrative process to get a business license last year in May or June. When she was denied on the grounds of needing a conditional use permit, the city instructed her to cease renting. She said she would not do that over the holidays to people who had nowhere else to go.

“I’m not trying to violate your rules,” Payne said. “I’m not trying to be antagonistic.”

The city council members, excluding John Patrick Rice who was absent, unanimously rejected the commission’s unanimous decision to deny the conditional use permit but attached stipulations that city attorney Dave Stanton said pertain to “intensity of usage” not “type of usage.”

The stipulations require that Payne follow the recommended conditions of the city planner in a Nov. 21 memo, adhere to an 11-occupant limit, and obtain a waiver or variance within 180 days to bring the number of parking spaces up from three into compliance with city code. The planning commission would review her application for a waiver or variance. If denied, she could appeal to city council.

Councilman Reece Keener also “strongly suggested” that Payne hold a neighborhood meeting to help clear up misconceptions about what the facility would offer. The city also got it on record that Payne committed not to bring in any new renters until she obtains a business license.

Several neighbors attended the public hearing to express concerns about traffic, parking and property value. Additional comments regarding the type of residents at the facility were chided by Payne’s lawyer.

“Even public comments on that are discriminatory,” Thomas said.

Payne operates about 10 related for-profit sober living facilities in Northern Nevada, and the Winchester Drive facility would be her first in northeastern Nevada. The building formerly operated as part of BeeHive Homes, an assisted living facility, before being abandoned for about a year.

LYFE Recovery clients are directed to sober living homes through drug court, Payne said, and residents at the Elko location would be local. She said she will have to look at her expenses and rates, about $600 per person, to determine if 11 occupants could cover her lease.

“I guess we are going to keep fighting this fight. We have to. I’m not a quitter,” Payne said after the meeting. “We are also really solution oriented. I’m really, really grateful that they let us keep operating.”

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Former Elko OB/GYN sued for negligence

ELKO – A former Elko obstetrician/gynecologist is being sued for medical negligence stemming from a 2013 procedure that burned a hole in a patient’s bowel.

Opening arguments began Jan. 10 in the jury trial of Dr. Gary Wright, who specialized as an OB/GYN in Elko from 2005 to 2016. Elko District Judge Al Kacin is presiding.

The plaintiff, Jessica Van Hoy, is seeking unspecified damages, alleging Wright “negligently injured” her when the bipolar electrocautery tool he used in a laparoscopy to remove an adhesion burned her bowel and that he failed to convert the surgery to a full-open procedure to examine the area for damage.

The procedure took place April 3, 2013, at Northeastern Nevada Regional Hospital. Van Hoy’s attorney, Charles W. Spann, told the jury that because of her “complicated” medical history, Wright should have obtained a second opinion instead of sending her home. After the surgery, Wright told Van Hoy and her husband about the burn to the bowel and told them to contact him if there was pain.

Spann said Van Hoy experienced “severe” pain, nausea and sweating 15 minutes after leaving the hospital and returned to NNRH that afternoon. Van Hoy was operated on the next day, about 31 hours after her first surgery, to repair the hole, and was hospitalized for nine days.

Anthony Lauria, representing Wright, told the jury that burns or “thermal spread” can take place when using an electrocautery tool, or Kleppinger, and that injuries to bowels are common in laparoscopies. Lauria said Wright did not see any evidence of fluid leaking into the abdomen as a result of the burn to the serosa tissue of the small bowel before concluding the procedure. Lauria also stated that Wright knew most burns “heal on their own.”

Lauria told the 10-member jury that the defense planned to call other physicians during the trial, explaining that in some of their depositions they stated Wright “met the standard of care” and was not negligent, adding that the “totality of evidence” presented in the trial would show that Wright was not negligent.

Wright is board certified in Nevada, Hawaii and Texas and he opened his own practice at the Pinion Road Medical Clinic in 2008, according to Free Press files. He was the department chair of the OB/GYN unit at NNRH from 2010 to 2013.

Wright moved to Texas in 2016 and is expected to testify in his own defense during the trial.

The trial is expected to continue through the rest of the week.

Amodei: No 'reason for panic' about marijuana's situation in Nevada, but Congress should 'get off its butt' and act

Nevada Republican Rep. Mark Amodei sees no immediate threat to the state’s burgeoning marijuana industry following Attorney General Jeff Sessions’ recent decision to overturn policy at the Justice Department that gave states protections from federal prosecution.

“I don’t think there is a reason for panic,” Amodei said on a call with reporters on Tuesday, several days after the decision was announced. “It is good to keep your eye on it.”

Although he doesn’t expect a crackdown, he believes Congress should act to clear up the issue of medical and recreational marijuana use.

“If we want some predictability and stability … it’s probably time … that Congress get off its butt and start dealing with the issues,” Amodei said.

The Northern Nevada lawmaker’s measured approach mirrors that of some in the state’s marijuana industry. Nick Spirtos, a doctor who runs The Apothecary Shoppe dispensary west of the Las Vegas Strip, said that while his customers were stressed by Sessions’ move, he entered the business with eyes wide open.

“I don’t worry about it,” Spirtos said in an interview after a Thursday press conference held at his dispensary. “Look, the federal government could’ve closed us down anytime they wanted. We undertook this with the understanding that there were risks. Hopefully they will appreciate what we’re doing to contribute to the overall health of the patients in this state.”

Democrats sounded the alarm about the move, calling Nevadans to fight for their state’s rights to maintain a marijuana industry in spite of federal prohibition. Democratic state Sen. Tick Segerblom, sometimes called the godfather of marijuana in Nevada, said he’d been fielding anxious calls from people in the industry.

“I tell them on the one hand, don’t worry, relax, calm down,” he said in an interview Thursday. “On the other hand, I’ll say, we need to push back. We need to scream bloody murder. This is unacceptable.”

Democratic Rep. Dina Titus said that while Congress — which has anti-marijuana lawmakers in key leadership positions — has made virtually no progress on relaxing a federal marijuana ban, the anxiety over Sessions’ decision could force more lawmakers to take a stand.

“This may work to our advantage,” she said in an interview on Thursday. “Now that we see what this is really going to do, it may motivate more representatives from states to get busy and pass that legislation because they’ll be hearing from their constituents, they’ll be hearing from businesses and maybe we can make something good about that.”

Marijuana is currently classified with drugs such as heroin, that are deemed to be “drugs with no currently accepted medical use and a high potential for abuse,” according to the Drug Enforcement Administration.

Amodei noted that he has been working with Titus to support legislation introduced by Maryland Republican Andy Harris that would legalize medical marijuana. He said the two also back a bill from Colorado Democrat Jared Polis that would allow recreational use to classify marijuana similar to alcohol.

Amodei said that marijuana could become an issue his re-election campaign since “in the election everything is fair game,” and underscored his belief that it is time for Congress to settle the matter.

“If you really want to address the issue, you’ll hear me say in the campaign cycle, ‘it’s time for us to act,’” said Amodei, who represents a heavily Republican district. “By the time that discussion starts in a few months, you’ll also hear me say… ‘here’s the legislation I’ve affiliated myself with, here’s why, here’s the research we’ve done.’”

He expects dealing with medical marijuana will be easier than dealing with recreational. While he is working with Titus, he said he had not seen the details of a bill co-sponsored recently by Democratic Rep. Jacky Rosen that would prohibit federal prosecution of individuals for marijuana possession so long as they follow their state’s respective marijuana laws.

Amodei was not also prepared to advocate for language to be included in the annual spending bills that would prohibit use of federal funds to prosecute recreational use. Such a provision, offered by California Republican Rep. Dana Rohrabacher, exists for medical marijuana, which has been included in previous spending bills. California Republican Rep. Tom McClintock has proposed a provision to protect both. “I haven’t thought about it, but we are going to look at that,” Amodei said.

Asked if he had worked with any Senate counterparts, Amodei said, “I can’t tell you what they’re doing over in the Senate, but that’s not a news flash for me,” Amodei said.

Colorado Republican Sen. Cory Gardner, who also chairs Senate Republicans’ campaign arm, said he expects lawmakers from states with legalized marijuana, such as Nevada, to stand up for their constituents.

“The people of Colorado made it very clear what they wanted as it relates to marijuana, at first medical marijuana, then recreational marijuana, and I think it’s my job to protect those states’ rights and states’ decision,” Gardner said Tuesday. “I think senators in states … where they have legalized medical and recreational marijuana will find themselves in the same situation defending and protecting states’ rights.”

Heller issued a less forceful statement than Gardner when Sessions’ decision came down, encouraging the Department of Justice to work with Nevada’s governor, attorney general and congressional delegation. Segerblom called on Sen. Dean Heller to join Gardner in a more aggressive crusade.

“If Heller would stand up and join with Gardner, they’d have to back off in a second. Then we’d have 51 votes on our side and no federal appointments or nothing,” Segerblom said. “So if those Republicans in states that have recreational would just get together and say ‘this is money, this is jobs,’ we’d be in good shape.”

Heller didn’t respond to a request Tuesday for additional comment.

Gardner, who has threatened to block all Department of Justice nominees, including U.S. marshals and U.S. attorneys, was meeting with Sessions on Wednesday. “The bottom line is that this could be solved by the Department of Justice changing their decision to reverse the Cole Memorandum.”

Gardner said that he intends to discuss with Sessions a solution that would “allow (Sessions) to live up to his commitments he made to me prior to his confirmation.”

The Colorado senator, who voted to confirm Sessions as attorney general has said that he had commitments from Sessions and President Donald Trump that marijuana enforcement policy would not change.

Under Sessions’ pronouncement, U.S. attorneys will have broad discretion on whether to prosecute violations of federal marijuana law in their districts rather than adhering to guidelines provided under the Cole Memo. Gardner said that he was concerned by the comments issued Monday by the U.S. Attorney in Massachusetts.

Although the U.S. Attorney in Colorado said last week that he would not seek to prosecute violations of federal law with regard to marijuana, the U.S. Attorney in Massachusetts, Andrew Lelling, released a statement noting that he could not “provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution.”

The office of Nevada’s U.S. attorney, Dayle Elieson, declined to comment on Tuesday. Elieson, who hails from Dallas and began in the role on Friday, so far has not given any public indication about where she stands on the matter — a fact that concerns some marijuana proponents.

“It leaves it up to the discretion of the states. Some may be more aggressive than others in going after the businesses,” Titus said about Sessions’ decision. “Texas doesn’t have it, she doesn’t know much about it. We don’t know what that means, whether she’s going to be aggressive or not.”

“Now that we see what this is really going to do, it may motivate more representatives from states to get busy and pass that legislation because they’ll be hearing from their constituents ...” — US Rep. Dina Titus

Jeff Mullins 

U.S. Rep. Amodei