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,~~~\ ~"j \~ ~~peter Kasper . . 2 Because of the Fish and Wildlife Service and Corps of Engineers requirements imposed during approval of the reconstruction project in 1986, the Forest Service cannot unilaterally choose to allow ODRC to eliminate the requirement. The Forest Service sees no reason to alter the present agreed to conditions. . We believe that the transfer and perfection of the conditional water rights from Overland Reservoir No. 2 to abSOlute water rights in Overland Reservoir No. 1 which followed the reconstruction of OVerland Reservoir No. 1 in 1986 and 87 and the ability of ODRe to perfect the remaining 970 acre-feet of conditional storage rights from OVerland Reservoir No. 2 will guarantee ODRe increased storage in Overland ReserVOir No.1. The increased capacity realized by the perfection of the OVerland Reservoir No. 2 storage rights will improve the daily Operations of OVerland Reservoir No. 1 and increase your ability to meet the bypass amounts required by the 1986 FLPMA Easement. Please be advised that the requirement for submission of an annual operating and maintenance plan for the ditch was not affected by the settlement agreement and is still in effect. W~ would appreciate receiVing that plan within 30 days of receipt of this letter by ODRC. A change to note for this year 1s that, in accordance with prOVisions of the Act of March 3, 1891, any trees removed from within the easeme~t area will require a permit and a payment from ODRC for their removal. There may be some misunderstanding at to what an 1891 Act easement actually . gives you. Although the easement is a private property interest, the lands underlying the ditch, reservoir and ~ervice trail remain National Forest System lands and not private property. Ey virtue of the settlement agreement, the Forest Service agrees that you have an 1891 Act Easement for the majority of the OVerland reservoir and ditch system. The 1981 Act Easement does not give you the authority to do whatever you deem necessary without consultation with the Forest Service. See Elko County Eoa!=~_p,Lfi!lP~EY~!lP.r;;_!l~_.!l!-,_::: Glickman (909 F.Supp. 759 (D.Nevada, 1995)) which states that holders of vested 1866 or 1891 easements are subject to reasonable regulation by the Forest Service, "reasonable" meaning regulation which neither prohibits ranchers from exercising those rights nor limits their exercise of those rights so severely as to amount to prohibition. The size of the acreage covered by the 1986 FLPMA Easement is spelled out quite clearly in the Declaration of Bruce Marvin, Engineer for the Plaintiff, and David Wolf, Engineer for the Defendants, attached to the Settlement Agreement. The acreage covered by the 1986 FLPMA Easement amounts to 37.8 acres in the discussion in item 3. pluS 15.03 acres contained in the main darn embankment, excavated spillway channel and toe drains outsid~ of the dam area discussed in item 2., for a total of 52,83 acres covered by the 1986 FLPMA Easement. That is considerably larger that the 3 acres you discuss 1n your letter. . ~ Caring for tha Land and Serving People ~c:..A"nl'\-?j:l r7.A'"