VIRGIN VALLEY WATER DISTRICT SPECIAL BOARD MEETING
VIRGIN VALLEY WATER DISTRICT OFFICE
FEBRUARY 22, 2010

Minutes of a Special Board Meeting of the Virgin Valley Water District Board held on February 22, 2010, at the Virgin Valley Water District Office at 5:00 p.m. Attending were President John Paul, Vice-President Karl Gustaveson, Secretary-Treasurer Kenyon Leavitt and Board Members Ted Miller and Mark McEwen. Also present were William Peterson Interim General Manager, Bo Bingham District Counsel, Michael “Boomer” Johnson District Hydrologist and Mary Johnson taking minutes and other interested parties of agenda items.

President John Paul called the meeting to order at 5:00 p.m. Mark McEwen offered a prayer and Karl Gustaveson led the pledge.

(NOTE): The minutes of this meeting have been recorded and will remain on file in the District office for a one-year period for public examination.

AGENDA:

1. Discussion & Action - Approve Agenda

Kenyon Leavitt made a motion to approve the agenda as posted. Karl Gustaveson seconded this motion and it was unanimously carried. 5-0

2. Discussion & Possible Action – Consideration of Lease of Real Property for Telecommunication Tower Executed by the Virgin Valley Water District and Rebel Communications, LLC and Alternatives to Continued Operation Under Such Lease Due to Trespass and Unauthorized Use Issues Associated with the Site of Virgin Valley Water District Well #30. Consideration and Possible Action to Determine Other Options for Radio Communications

Cody Whipple representative of Rebel Communications presented a short power point presentation stating that as new technology expands with wireless communication you would have the ability to control well sites, which would be able to provide exceptional band width to each of our remote locations. Cody explained what you could do over an internet link that could never be done before with SCADA systems, tone remote, or with the variety of communication systems that have been in place over the last twenty years until Ethernet became available. Cody showed an example by going to Google Earth and showed a site in the Tule Desert and how they were able to receive information from 26 miles out and how the District would have a direct line of sight to all our locations now and in the future and able to control everything from an office location. Cody further stated that if there had been no trespass issues, Beacon Hill in Moapa would have had a line of site to this location and that the State of Nevada has gone out of their way to let the BLM know how important this site would be for sharing resources. Boomer mentioned expected sites and that even with the distance from Mesquite that the tower would still communicate to these sites.

Kenyon Leavitt stated that we have been in contact with the BLM and they have indicated that the District does not have to transfer ownership of the tower, but the BLM is adamant that there will be no leasing to third parties and that the costs to the District were going to be a “pretty good chunk of change” and does not see how the District could afford.

Cody stated that he is more than willing to continue working with the District and the BLM and with the BLM alleviating the trespass; Cody stated he was not in a hurry and wanted to figure something else out.

Karl Gustaveson stated that it did make a big difference to the District regarding the leasing of the tower, especially with no assurances to the District from the BLM, Fish & Wildlife or other federal agencies on making a timely decision. Karl further stated that he was quite taken aback with the costs of this project. Karl requested Cody to run through the numbers of the actual cost of the project and Cody stated that he was not willing to give out these numbers or how he was going to run this site in a public forum. Cody stated that he was willing to work out an agreement hoping that the BLM would revise their RMP. Karl further stated that he just didn’t see the need and that there were other possibilities available to the District and that this board or previous boards’ were not given the opportunity to listen to other proposals. Cody stated that he was here today to listen to this boards’ proposal and asked for the board to tell him what they proposed. Karl further stated that if Rebel Communication built the tower for only VVWD’s use, it would have been built differently at a much lower cost and since third party leases will not be allowed, it would cost the District over building by 500%. Cody responded by stating if he were allowed to work through the process that the District could look for grants, etc. that would help the District and Rebel Communications. Cody explained why they built the tower on this site.

There was further discussion regarding the agreement and what was expected if subleasing was allowed.

John Paul asked Cody if the Water District were to propose purchasing the tower for $150,000 to $200,000, what his response would be. Cody stated that he could not respond to that and that he could not disclose because he didn’t want the information going out to the papers and competitors; but he couldn’t transfer the equipment for that amount.

There was discussion as to leasing to third parties, access to the tower, putting up a tower without having any federal bureaucracy involved and the site itself. The trespass was discussed again along with the contract and the responsibility of contacting the BLM along with other agencies for approval. Boomer explained the ROW and how it would be amended when the District signed the Settlement Agreement with the BLM, but that the ROW would still not be a site type ROW for communications because it is within the ACEC and that the District could use for SCADA site, but it was not available for third parties.

Bo stated that he wanted to make it absolutely clear from the BLM right now states that there can be no sublease by the District on this tower. The tower is on BLM property and they can dictate what they want to do within the perimeters of their property. They are amending the perimeters of the fence line, but they are not amending the use of the tower. There was further discussion regarding if the ROW had been changed earlier allowing the fence line; the BLM would still have not allowed for third parties on the tower since the tower was still on BLM property and within the ACEC. It was discussed why Rebel Communications did not contact the BLM for permission. Bo read paragraph #8 (Government Requirements) in the contract to Lease of Real Property for Telecommunication Tower between the VVWD and Rebel Communications, “At its own cost, the Lessee shall comply with all statutes, ordinances, regulations, and requirements of all federal, state, county, and local governmental entities insofar as they relate to the use of the premises on which the Improvements are placed.”

There continued to be a lengthy discussion on the contract, subleasing, the costs associated with the construction of the tower and the burden to the ratepayers of the District. Bo also wanted on the record that multiple times it has been requested to go into a closed session; and of course we want to protect Rebel’s proprietary information and secrets and so forth, and that they (Bingham & Snow) have looked into this closely by looking at NRS.241 and have also contacted the Attorney General’s office asking if the District could go into a closed session with Cody and they indicated that we could not.

There was further discussion on the trespass notice and extensions given by the BLM; this being a bad business deal all the way around; costs and responsibility of these costs; third parties who were going to be on tower and ever being able to sublease on the tower; this being a gamble; and obligations to the ratepayers.
Cody stated that he wants to continue working with the District because he believes that the BLM will allow third parties on the tower in the future. Bo stated that it may be possible to craft a settlement agreement whereby you would put the burden on obtaining the approvals of the unknown from the BLM on Rebel Communications and we would maintain the status quo for a short period of time and in the event it doesn’t happen we would go our separate ways.
Ted Miller stated that as far as the contract, it is null and void if you read paragraph 8; we don’t need the tower; we don’t need it for how long; and we need to sever our relationship with Rebel Communications.

John Paul opened the item to the public and Kraig Hafen questioned who signed the agreement, which Mike Winters did with board approval.

Karl Gustaveson made a motion to dissolve the District’s relationship with Rebel Communications and ask for the removal of tower so we can satisfy BLM’s request for Trespass. Ted Miller seconded the motion.

Bo stated that from a legal standpoint, he would like to see Karl put in that motion is that the reason you are making that motion is because you feel that Rebel is, among other things, not in compliance with the contract, specifically with paragraph 8.

Karl Gustaveson amended his motion to say that the primary reason for our decision is that the board feels that Rebel Communication is not in compliance with the contract, including section 8. Ted Miller seconded the amendment to the motion.

Kenyon asked to comment on the motion and stated to Cody that he didn’t know where to begin and end; and it’s not that we don’t need a tower, but he cannot see an end and doesn’t know how we would get that tower paid for and wished things had gone different in 2007 than they did today.

John Paul called for a vote on the amended motion and it passed unanimously. 5-0

John Paul called for a vote on the main motion as amended and it passed unanimously. 5-0

3. Discussion & Possible Action – Consideration to Approve Execution of the Proposed Settlement Agreement with the United States Bureau of Land Management to Resolve all Trespass and Unauthorized Use Issues Associated with the Site of Virgin Valley Water District Well #30

Karl asked Bo in light of the decision just made, for us to be able to resolve this, how would we approach this with the BLM? Would we send them a notification of our decision this evening telling them that it is our intention to go ahead and send them the check based on our decision no longer having the tower? Bo answered that Beth was expecting some type of explanatory letter, along with the signed settlement agreement. BLM was not willing to make any change to the agreement. That basically it was a take it as it is, this is the agreement. In the event the Board decides to execute that agreement, then yes we would craft an explanatory letter along with the agreement.

Mark McEwen questioned where that would leave Cody with the building and equipment in the eyes of the BLM. Bo stated that we could meet with Cody and talk with him further with what he wants to do with the tower. Bo further stated that he didn’t think that they (BLM) cared. At first they said we had to take ownership of the tower and then they said we did not, so he thinks they will be okay with however that is handled; but we just can’t sublease it and it doesn’t have to be down by March 5, 2010. Bo stated that Cody insinuated that it may take four to six months to remove the tower.

John Paul opened the item for public comment and Kraig Hafen asked if everything is settled, and Cody can get it signed off from the BLM, and comes back to the board and says here it is, and no one is under the gun, seems like there is no harm, no foul; the board may be open to something like that.

Boomer commented that associated with the building there is an unoccupied structure for communication equipment, the tower and associated with the tower is a substructure on that and are we looking to have that removed also.
John Paul stated that at this point it is not our property and that would be up to Cody in regards to the tower and building and substructure.

Karl commented that we do not own the land and we use as a ROW because the BLM owns the land and eventually if we leave that ROW, VVWD would be responsible for removing that foundation and we would have to bring the land back to where it was.

There was further discussion as to the gamble that Cody may be able to settle or work out an agreement with the BLM to sublease the tower in the future and the ROW that the District holds.

Kenyon Leavitt made a motion to execute the proposed settlement agreement with the United States Bureau of Land Management to resolve all trespass and unauthorized use issues associated with the site of Virgin Valley Water District Well #30. Mark McEwen seconded this motion.

Karl asked Bo if there needed to be something included in motion regarding the motion made tonight with Rebel; that we have severed our ties with Rebel and resolved the tower issues. Bo stated that the settlement Beth requested was, in the event the District decides to move forward with Rebel, we’re not going to interfere with that business relationship, but you have to very carefully craft a letter to be sent in with that settlement agreement explaining exactly what your situation is with Rebel. It was further discussed that we severed ties with Rebel and did not enter into an agreement with them and what should be done. Bo stated that he did not think that we needed to carefully craft a letter, but that he wanted clarification from the BLM on a lot of issues; one is what to be done with the improvements.

Kenyon Leavitt amended his motion to state that we craft a letter to the BLM acknowledging the District severing the agreement with Rebel Communication and to have the Interim General Manager to sign the settlement agreement. Mark McEwen seconded the amended motion and the amended motion passed unanimously. 5-0
John Paul called for a vote on the original motion as amended and it passed unanimously. 5-0

4. Discussion & Possible Action – Consider Authorizing Use of Additional Lobbyist in Support of Bill Draft Request Submitted by Nevada Division of Water Resources Dealing with Applications held by Virgin Valley Water District

Boomer stated that this was a general placeholder knowing that rumors of a proclamation by the Governor, including a bill draft request dealing with the Supreme Court Ruling, but nothing has happened. The status has not changed on the Supreme Court Ruling; there has been no proclamation by the Governor to include this as part of the special session; and we do have a lobbyist, Randy Robison on retainer.

John Paul stated that we may be able to work with SNWA and their lobbyists if such a proclamation does result.

Kenyon stated that he had spoken with Randy Robison last week and he was of the opinion that we really didn’t need anything because there was nothing on the agenda for the special session.

Karl questioned counsel and stated that we do not know when this might come on so should we maybe put a placeholder on the next agenda for next Tuesday. Bo stated that he had spoken with Randy as well and we would have a lot more information before the next meeting.

The item died for a lack of a motion.

5. Discussion & Possible Action – Discuss the District’s Possible Participation in a Motion for Reconsideration and Possibly Intervening in the Remanded Case Based on the Recent Nevada Supreme Court Decision in Great Basin Water Network vs. State Engineer

Bo stated that it was very possible that the parties in the recent Supreme Court decision will be resubmitting a document, possibly a motion for reconsideration of the Nevada Supreme Court asking them to reconsider the issues that were argued. In the event that happens, we’ve been approached and asked to participate in that as one of the parties that rights could be severely affected by that ruling and in addition as it relates to remanding that case back to the District Court for further treatment. We’ve been contacted by Moapa Valley Water District (MVWD) and there are other parties may also be affected by that remand and whatever action the District Court decides to take. We’ve been approached to possibly take, as an intervening party, to take board action and it may be a good idea to do that as it develops; we don’t have a lot of definitive information on that other than a phone call with MVWD attorney and Bo has requested additional information on that and we will provide that as it comes.

John Paul asked if this required a motion or direction to legal counsel. Bo stated that direction to legal counsel from the board to explore these issues and maybe come back to the board with additional information would be a good approach.

Ted Miller made a motion to direct legal counsel to have more information at the next board meeting. Kenyon Leavitt seconded this motion and it was unanimously carried. 5-0

6. Public Comment – There was no public comment at this time.

7. Adjournment

President John Paul adjourned the meeting at 6:58 p.m.

The minutes of this meeting have been tape-recorded and will remain on file in the District office for a one-year period for public examination.

• Board Meeting Minutes: 2010-02-22 Special (.pdf 24K)