Nevada position on control of public lands
November 5, 1993
TO: Robert Miller
Governor of the State of Nevada
TO: Bruce Babbitt
Secretary of the Interior
TO: Michael Espy
Secretary of Agriculture
TO: Jim Baca, Director
Bureau of Land Management
TO: David Unger, Acting Chief
U.S. Forest Service
SUBJECT: PUBLIC LAND AND OTHER MATTERS RELATED THERETO
name is Dick Carver. I am a Nye County Commissioner and a member of the
Nevada State Land Use Planning Advisory Council and the Consumer
Advisory Panel to Sierra Pacific Power Company. I am a past member of
the Nevada State Conservation Commission and the United States
Department of Interior Bureau of Land Management Battle Mountain
District Advisory Council. I am a conservationist and a
second-generation rancher here in Smoky Valley, Nye County, Nevada.
There are two more generations living on the Carver Ranch today, my son
and my grandchildren. My ranch does not have any dependency on public
lands for grazing, nor do I have any mining claims on public land today.
The Carver family has a long history involving the use of the public lands. The Carver family was in the cattle business when they came from Missouri to California in 1850. They drove 800 head of cattle from the Salt Lake area to Hangtown (Placerville), California, to supply beef for the miners of the California Gold Rush. The Carver family was the first family of non-Hispanic, non-native American settlers to graze cattle on the public lands in what is now Yosemite National Park, including Yosemite Valley and Tuolumne Meadow. In 1869, because of drought, the Carvers moved their cattle south along the west slope of the Sierra Nevada mountains to the Kern River area, where they continue to operate today on public lands.
of my "deep roots" in the public lands issue, and as a Nye
County Commissioner, taking the oath of office to uphold the
Constitution and laws of the United States and the Constitution and laws
of the State of Nevada, I am addressing the above- mentioned topic.
views are my own and as a Nye County Commissioner, but may or may not be
the views of the Board of Nye County Commissioners. I am addressing the
most critical issue before us today:
WHO OWNS THE PUBLIC LANDS IN NEVADA?
POINTS OF INTEREST
The United States Federal Government, Department of the Interior, and
the Department of Agriculture are now regulating and managing certain
public lands within the borders of the State of Nevada.
The United States Federal Government, Department of the Interior, Bureau
of Land Management (BLM) is in the process of developing a new Tonopah
Resource Management Plan (RMP). "The purpose of the Tonopah RMP is
to provide the BLM direction to manage its natural resources in the
Tonopah Resource Area." (from the Draft Tonopah Resource Management
Plan and Environmental Impact Statement, p 1-1).
The United States Federal Government, Department of the Interior, and
the Department of Agriculture have presented "a proposal to improve
management of rangeland ecosystems and the administration of livestock
grazing on public lands." "As the nation's principal
conservation agency, the Department of Interior has responsibility for
most of our nationally-owned public lands and natural resources."
(Rangeland Reform '94).
4. After a thorough review of the United States Constitution, and the
intent and concerns of the framers of the United States Constitution, it
does not contain any authorization for the Federal Government of the
United States to own, hold, or exert its dominion over any public lands
except for whatever land it needs for its own governmental purpose as
specified. Furthermore, the United States Government is authorized to
acquire such needed land in any of the several states, by purchase,
providing it shall be with the consent of
the legislature of the state involved, and for those purposes specified.
Article 1, Section 8, Clause 17, of the United States Constitution,
hereafter referred to as 1.8.17).
The State of Nevada legislature has granted certain cessions to the
United States Federal Government pursuant to 1.8.17 in Nye County as
follows: The land for the Post Office and Federal building in Tonopah (NRS
328.270 and NRS 328.280), the Federal acquisition of land required by
the Department of Defense or Atomic Energy Commission. (Appendix B PART
A - State Constitutional Provisions and Statutes of General Effect
Relating to the Acquisition of Legislative Jurisdiction by the United
States, for Nevada, found in Report of the Interdepartmental Committee
for the Study of Jurisdiction over Federal Areas within the States, Part
I, The Facts and Committee Recommendations Submitted to the Attorney
General and Transmitted to the President, April 1956, pages 175-178).
The Nevada Revised Statutes clearly limit federal jurisdiction over the
land in Nevada.
NRS 328.075 (2) STATES AS FOLLOWS:
jurisdiction over land to which this state has not ceded its
jurisdiction is limited to carrying out governmental purposes authorized by the Constitution of the United States, and federal
jurisdiction over lands held for other purposes is limited to that
exercisable by an ordinary proprietor under the laws of this state. (My
The conclusion submitted to the Attorney General of the United States,
the Honorable Herbert Brownell, Jr. and transmitted to President
Eisenhower in 1956 by The Interdepartmental Committee for the Study of
Jurisdiction over Federal Areas within the States is as follows:
"In the usual case there is an increasing preponderance of
disadvantages over advantages as there increases the degree of
legislative jurisdiction vested in the United States."
2. "With respect to the large bulk of federally owned or
operated real property in the several states and outside of the District of Columbia, it is
desirable that the federal government not receive, or retain, any
measure whatever of legislative jurisdiction, but that it hold the
installations and areas in a proprietorial interest status only, with
the legislative jurisdiction remaining in the several states." (Id
70, Part I).
The intent of the framers of the Constitution of the United States was
to guarantee to each of the states sovereignty over all matters within
its boundaries except for those powers
specifically granted to the United States as agent of the state.
(NRS 321.596(4)). (my emphasis added).
The certain public lands mentioned in my first point of this letter are
in fact public lands that belong to and are under the jurisdiction and
control of the State of Nevada.
NRS 321.5973 STATES AS FOLLOWS:
lands and minerals are property of the State; rights and privileges
under Federal laws to be preserved; administration of land to conform
with Treaties and Compacts.
Subject to existing rights, all public lands in Nevada and all minerals
not previously appropriated are the property of the State of Nevada and
subject to its jurisdiction and control.
2. Until equivalent measures are enacted by the State of Nevada, the rights and privileges of the people of the State of Nevada under the National Forest Reserve Transfer Act (16 U.S.C. 471 et seq.), the General Mining Laws (30 U.S.C. 21 et seq.), the Homestead Act (43 U.S.C. 161 et seq.), the Taylor Grazing Act (43 U.S.C. 315 et seq.), the Carey Act (43 U.S.C. 641 et seq.), and the Public Rangelands Improvement Act (43 U.S.C. 1901 et seq.), and all rights of way and easements for public utilities must be preserved under administration by the state.
Public lands in Nevada which have been administered by the United States
under international treaties or interstate compacts must continue to be
administered by the state in conformance with those treaties or
compacts. (Added to NRS by 1979, 1976).
On the public lands owned by Nevada, there is a split estate or other
private property rights (i.e., water rights, minerals, grazing rights,
timber rights, access rights, etc.). These rights must be recognized and
are by state law.
NRS 321.5973(1) STATES AS FOLLOWS:
to existing rights, all public lands in Nevada and all minerals not
previously appropriated are the property of the State of Nevada and
subject to its jurisdiction and control."
The following discusses the administration of the public lands within
the State of Nevada.
NRS 321.5977 STATES AS FOLLOWS:
in administering public lands. The public lands of Nevada must be
administered in such a manner as to conserve and preserve natural
resources, wildlife, artifacts, prehistoric sites and artifacts,
paleontological resources and to permit the development of compatible
public uses for recreation, agriculture, ranching, mining and timber
production and the development, production and transmission of energy
and other public utility services under principles of multiple use which
provide the greatest benefit to the people of Nevada. (Added to NRS by
1979, 1365; A 1981, 323 ).
12. Nye County, as a governmental subdivision of the State of Nevada,
is responsible for public lands management in cooperation with the State
of Nevada on public lands within -the borders of Nye County. Nye County
has a Policy Plan for Public Lands which was developed with the
cooperation of the State of Nevada (NRS 321. 640-770) and approved by
the Nye County Board of
Commissioners on April 3, 1985. Nye County has been in the process of
updating this plan. I have been holding any further action on this plan
until I could research who owns the public lands.
conclusion, unless evidence can be produced to the contrary, Nye County
-- in cooperation with the State of Nevada -- is the public land
management authority within the borders of Nye County on all public
lands, with the exception of those lands pursuant to 1.8.17 of the
United States Constitution.
understand clearly how this conclusion was drawn, one must look back
over the past history of the public lands. These lands at one time were
called "public domain." We have to go back even further into
the past, back to the original thirteen colonies (1783), where there was
no "public domain" as we later came to know it. When the
thirteen colonies became free sovereign states, all the land within the
border of each state was either privately owned or belonged to that
state. There was no central government, and each unit was a complete
independent sovereign state or small nation unto itself. In the states
that were created out of the Northwest Territory, lands not privately
owned were called waste or unappropriated lands.
book "Golden Fleece in Nevada" written by Judge Clel Georgetta
states "In 1780, the Continental Congress adopted a resolution
requesting the thirteen original states to surrender to the central
government (the Confederation) all the lands they claimed in the
territory west of their original boundaries to the Mississippi, so such
lands could be sold to private interests for money to pay off the debt
incurred by the Revolutionary War, and then the area would be divided
into new states to be admitted into the Confederation on the same basis
as the original states." (@ 151).
Georgetta continues "The thirteen independent sovereign states were
first joined together in a Federal Union known as 'The Confederation'
and in 1781 ratified 'The Articles of Confederation and Perpetual
Union.' Those Articles contain the following words:
Article II. Each state retains its sovereignty, freedom and
independence, and every power, jurisdiction and right, which is not by this confederation
expressly delegated to the United States in Congress assembled.
IX. ...provides also that no state shall be deprived of territory for
the benefit of the United States. (Id 150).
can be no doubt that the purpose of guaranteeing each state its complete
sovereignty was to waylay all fear of joining the organization. It was
those words of guaranty in the Articles that the various states joined
the 'Confederation' in order to form a Central Government to perform
certain functions for all the states as a group. It was to be a central
government with very limited power." (Id 151).
transfer of the dominion of the central government comprised of the land
west of the Appalachian Mountains to the Mississippi became known as
'the Northwest Territory.' In 1787, the Continental Congress created, by
the Articles of Confederation, passed a legislative act which came to be
known as 'the ordinance of 1787' pertaining to the Northwest Territory.
It contained these words":
13 ...to provide also for the establishment of states, and permanent
government therein, and for their admission to a share in the Federal
Councils on an equal footing with the original states."
V ...and whenever any of said states shall have sixty thousand free
inhabitants therein, such state shall be admitted, by its delegates,
into the Congress of the United States, on equal footing with the
original states, in all respects whatsoever..." (Id 152, 153).
"In view of the fact that the Articles of Confederation did not contain any provision for the Central Government to own, hold, or control any public land, it was considered that the Central Government - 'The Confederation' - held these lands in trust for the states that would be later created in the area." (Id 152). "Since this was a legislative act adopted by the Continental Congress before the United States Constitution was adopted, there seemed some doubt that it continued to be in full legal effect. Therefore, after the new Constitution was in effect, the Congress of the United States, created by the Constitution, reenacted the ordinance of 1787 in its exact words." (Id 152).
insure the continuation of "the Articles of Confederation" and
those of "the Ordinance of 1787", the Constitution of the
United States which became effective on March 4, 1789 contains Article
VI, Section 1 (hereafter referred to as 6.1).
6.1 STATES AS FOLLOWS:
debts contracted and engagements entered into before the adoption of
this Constitution shall be as valid against the United States under this
Constitution as under the Confederation."
United States operates under the numerous restrictions of the
Constitution. No matter what Congress or the States might wish to do,
they have to stay within the boundaries of the Constitution. This is why
the framers are credited with the invention of a new kind of republic
based on "Constitutional Supremacy." This makes the
"supremacy clause" the cornerstone of the whole American
political structure." (The Makings of America, ~. Cleon Skousen
"Supremacy clause" Article VI, Section 2 (hereinafter referred
to as 6.2) recognized both the supremacy of the United States
Constitution and laws, and the supremacy of the State Constitution and
6.2 STATES AS FOLLOWS:
Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made or which shall be made, under
the authority of the United States, shall be the supreme law of the
land; and the Judges in every state shall be bound thereby, any thing in
the Constitution or laws of any State to the contrary
The purpose of the supremacy clause was to prevent the States
>from invading those areas which had been specifically delegated to
the federal government. The framers were equally concerned with the
possibility of the federal branches of government invading the supreme
authority retained by the States or trying to acquire exclusive
domination of areas in which there was joint jurisdiction. Either case
involved the ugly word 'usurpation,' which all of the Framers so
vigorously warned against. (Id 657- 658 The Makings of America, Skousen
J. "The word supreme means no more than this - that the
Constitution and laws made pursuant thereof, cannot be controlled or
defeated by any other law...the State, as well as individuals, are bound
by these laws; but the laws of Congress are restricted to a certain
sphere, and when they depart from this sphere, they are no longer
supreme or binding." (Id 659, Skousen citing Hamilton).
misconception of the Supremacy Clause is "that Congress has supreme
power." Congress has only those powers granted by the Constitution.
The evidence is clear that "the laws of the United States shall be
made according to the Constitution of the United States and shall be
supreme." Another reading is that "the Constitution expressly
confines this supremacy to laws made pursuant to the Constitution of the
Constitution as the powers therein granted, is constantly to be the
supreme law of the land... It is not the supreme law in the exercise of
a power not granted. It can be supreme only in cases consistent with the
powers specially granted, and not in usurpation." (Id 659, Skousen
6.2 (lST PART) STATES AS FOLLOWS:
Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made or which shall be made, under
the authority of the United States, shall be the supreme law of the
the most casual reading of this part of the provision clearly
demonstrates that it is talking about the supremacy of the laws of the
United States made pursuant to the United States Constitution.
6.2 (2ND PART) STATES AS FOLLOWS:
the judges in every state shall be bound thereby, any thing in the
constitution or laws of any state to the contrary notwithstanding."
Again, "even the most casual reading of this part of the provision clearly demonstrates that it is talking about the state constitution, not the national Constitution." This supremacy is with the States. (The Makings of America, Skousen @ 662).
United States Congress was not granted the power to make state law
pursuant to state constitution. Only the state can make laws pursuant to
the state constitution. The United States Constitution," when
adopted, will become a part of our state constitution; and the latter
must yield to the former only in those cases where power is given by it.
It is not to yield to it in any other case whatever..." (Id 659,
Skousen citing Iredell).
I conclude that there are two supremacies, that of the United States
Constitution and that of the State Constitution. State supremacy is
"auxiliary" (Id 663) to the supremacy of the laws made
pursuant to the United States Constitution. Powers not delegated in the
United States Constitution to Congress are reserved to the States or to
the people through the Tenth Amendment to the United States
Tenth Amendment, "powers retained by the states and the
people," clearly strengthens my position that the powers granted to
Congress through the Constitution of the United States by the people are
limited, and all other powers are retained by the states or the people.
amendment was adopted to reassure the people that the national
government would not swallow up the states. It confirms that the states
or the people retain all powers not qiven to the national government,
(The Worldbook Encyclopedia CI-CZ Volume 4, page 798). (my emphasis
TENTH AMENDMENT STATES AS FOLLOWS:
powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively,
or to the people."
This brings us to the "powers granted to Congress." The
enumerated powers delegated to Congress are clear. Congress shall have
the exclusive power to make ALL federal laws, and that those laws would
pertain only to the powers enumerated in the Constitution. (The Making
of America, Skousen @ 252). From reading the intent of the framers of
the Constitution, we begin to see how much they had suffered from war
and what they had learned from their bitter experience with the weak
constitutional structure of the Articles of Confederation. In 1787,
"they sat in solemn contemplation of the powers they were not
willing to admit they must relinquish to a central government. Many of those
powers were volatile and dangerous - open to abuse." (Id 371). The
framers therefore tried to incorporate into the Constitution the
necessary checks and balances so that if these powers were abused, there
would be peaceful remedies available to protect the people and preclude
the necessity of going to war to regain their rights. "One of the
most important reasons the States united was to promote their mutual
defense. Spelling out the war powers was, therefore, a highly
significant segment of the Constitution." (Id 439). The enumerated
powers of Article 1, Section 8, Clauses 11-16 are considered the war
powers. One of the war powers, Article 1, Section 8, Clause 14
(hereinafter referred to as 1.8.14) has the word land in it.
1.8.14 STATES AS FOLLOWS:
"To make rules for the government and regulation of the land and
power clearly does not have anything to do with public lands, but refers
to land forces (i.e., United States Army) and naval forces. "This
provision gave the Congress the right to dictate the specific rules and
regulations under which the land and naval forces of the United States
would operate. This is a very important provision. The Constitution made
the President the commander in chief, but it gave the Congress the power
to lay down the regulations and restrictions under which, he would be
required to operate." (The Makings of America, Skonsen @ 449).
is also interesting to note that following the "war power"
provisions 1.8.11-16, the next enumerated power 1.8.17 gives Congress
the AUTHORITY to set up a ten square mile restricted area for the seat
of government, to be exclusively under the control of the Congress, (Id
456) for Congress should have a permanent, secure location. The
individual States had failed to protect Congress in the past. 1.8.17
also gives the Congress the AUTHORITY to exercise complete jurisdiction
over lands and facilities for defense of the nation which it purchased
with consent of the state legislatures for the purposes specified. Here,
in this provision, is still the concern of war, and is the only
enumerated power that mentions land.
1.8.17 STATES AS FOLLOWS:
"To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten square miles) as may, by cession of particular states and the acceptance of Congress, become the seat of government of the United States and to exercise like authority overall places purchased, by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings."
is very clear that the people of the States empowered Congress to
exercise complete jurisdiction and authority over all lands or facilities
purchased within a state, providing it shall be with the consent
of the legislature of that state. Such lands shall be used for
the "erection of forts, magazines, arsenals, dock yards, and other
needful buildings." Nowhere does Congress have enumerated power to
exercise complete jurisdiction and authority over state owned public
lands within the borders of Nevada. "It was assumed that as soon as
a new people of that state would acquire title to every acre of land
other than a very small percentage granted to the federal government for
the erection of forts, magazines, arsenals, dock yards, and other
needful buildings." (The Making of America Skousen @ 458). (my
consent requirement of 1.8.17 was intended by the framers of the
Constitution to preserve the State's jurisdictional integrity against
federal encroachment. The federal government cannot, by unilateral
action on its part, acquire legislative jurisdiction over an area within
the exterior boundaries of a state." (Report of the
Interdepartmental Committee for the study of Jurisdiction over Federal
Areas within the States. Part II @ 46, 47).
1, Section 8, Clause 18 (hereafter referred to as 1.8.18), which is
called an "implied power" (The Making of America Skousen @
778) gives the Congress the AUTHORITY to pass any other laws needed to
implement the provisions of the Constitution. It does not delegate
additional powers. "The Constitution had enumerated all the powers
which the government should have, but did not say how they were to be
exercised. This clause explained how they were to be exercised."
(Id 459-460 Skousen citing Nicholas).
1.8.18 STATES AS FOLLOWS:
"To make all laws which shall be necessary and proper for
carrying into execution, the foregoing powers, and all other powers
vested by this Constitution
in the government of the United States or any department or officer
have reviewed Article I, the Legislative Branch which includes the
powers granted to Congress, Section 8. There is Article II that is the
Executive Branch, and Article III, the Judicial Branch, the three
branches divide the powers of the United States government. This
division, called the separation of powers, is designed to prevent any
branch of the government from becoming too powerful.
there is Article IV, much of this article was taken word for word from
the old Articles of Confederation. This Article is "the relation of
the states to each other". (The World Book Encyclopedia CI-C2 @
798M). This is another section of the United States Constitution that
deals with land, lands that are
to become states. This is the section that will be referred to as
the statehood section, Article IV, Section 3 (hereinafter referred to as
4.3). At the time the United States Constitution was formed and adopted,
remember that the Confederation held the
Northwest Territory in trust for the establishment of states.
Also remember that "the Articles of Confederation" and
"the Ordinance of 1787" were valid under the new constitution,
6.1. The question of how the new central government was going to form
and admit new states in the future, beyond the original 13 states, had
to be addressed. This is how and why Article IV, Section 3, Clause 1
(hereinafter referred to as 4.3.1) was inserted into the United States
Constitution (my emphasis added).
4.3.1 STATES AS FOLLOWS:
states may be admitted by the Congress in the Union; but no new states
shall be formed or erected within the jurisdiction of any other state;
nor shall any state be formed by the junction of two or more states, or
parts of states, without the consent of the legislatures of the states
concerned, as well as of the Congress.
Now that we see how the Constitution covers property in the future, what about the existing property that the government held from the original 13 states? How was Congress going to dispose of the lands pertaining to the Northwest Territory and any other property that the original 13 states had ceded to the Confederation, and recognized by the new Constitution in 6.1.
This is how and why Article IV, Section 3, Clause 2 was inserted into the Constitution.
4.3.2 STATES AS FOLLOWS:
Congress shall have powers to dispose of and make all needful rules and
regulations, respecting the
territory belonging to the United States; and nothing in the
Constitution shall be construed to prejudice any claim of the United
States, or of any particular state." (my emphasis added).
Supreme Court has decided this "property clause" pertains only
to a certain territory at
the time the Constitution was adopted and was considered to only last
until the territory was
made into states, and the debt was paid. Thereafter, the only power
Congress was to have was to be one of the enumerated powers of 1.8 of
the United States Constitutions. The statehood article surely would
not have given Congress unlimited power to make any laws necessary and proper over whatever Congress wanted to do.
This would have defeated the limiting
powers of 1.8 of the United States Constitution and would also
make it impossible to determine the exact powers retained by the states
in the Tenth amendment.
consider this "property clause" as pertaining to a territory
and property before it becomes a state, as when a state is admitted, all
property is granted to the state on an equal footing with the original
It is true that Article 4, Section 3, Clause 2 of the Constitution states the Federal Government shall have power to make rules and regulations respecting "the territory or other property belonging to the United States." What did those words refer to? "...other property belonging to the United States" no doubt referred to its "forts, magazines, arsenals, dock yards, and other needful buildings" specifically listed in Article 1, Section 8, Clause 17. What did the word "territory" refer to? According to various debates among early American Statesmen, it referred to the lands west of the Appalachian Mountains which the central government had accepted from the original states to be held in trust until new states could be created and admitted to the Union as full sovereign states on an equal basis with the original states, which owned and had full dominion over all lands within their borders. (Golden Fleece in Nevada, Clel Georgetta, Judge @153).
Framers of the Constitution could have enumerated other powers in 1.8 of
the Constitution that could have included the authority for the federal government to own, manage and control all
public lands. The enumerated powers delegated to Congress limits the
control of land. The management and control of certain public lands were
clearly retained by the states
through the Tenth Amendment.
were many lengthy debates in Congress on issues dealing with public
lands. Senator Hendricks made one while speaking of the ordinance of
1787: "this union is in theory formed of sovereign, equal people
and independent states. In the older members of this Confederation, the
federal government sets up no claim to the waste and unappropriated
lands, has no land office, and derives no revenue from the sale of land.
The ordinance contemplated the public lands as belonging to new states,
after their admission in the union... As a further inducement to the new
states to join the Confederation the ordinance stipulated that they
should be admitted into the union... on an equal footing with the
original states in all respects whatever, and the Constitution in
substance of the same policy, provides that all engagements entered into
before the adoption of the Constitution shall be as valid against the
United States, under the Constitution as under the Confederation so that
the Articles of Confederation, the Acts of Cessions, the ordinance of
1787 and the Constitution itself, form a perfect and harmonious chain of
policy - the grand object of which was the union and equality of the
states. Then Mr. President, if at all correct in this view, it may well
be asked by what means have the new states been. deprived of their
equality of the right of soil... The public lands should be ceded to the
states in which they lie because their present condition is not
warranted by the letter of the Constitution of this government... Its
powers are carefully enumerated and specified. I deny, sir, the limits
of the states, except for the purpose designated by the Constitution
such as forts, magazines, arsenals, dockyards and other needful
buildings, and to enable Congress to hold lands even for these purposes,
the consent of the legislature of the states is declared to be necessary
by the expressed language of the Constitution..." (Id 154, 155).
As one can see, waste or unappropriated lands, later public domain, and still later, public lands were always a concern and discussed, but their ownership and control were retained by the states through the 10th amendment to the Constitution.
definitely do not want to overlook treaties, because they are also
"supreme law of the land."
A PORTION OF 6.2 STATES AS FOLLOWS:
all Treaties made, or which shall be made, under the Authority of the
United States, shall be made the supreme Law of the Land..."
we mentioned the importance of "the ordinance of 1787." Let us
now discuss a treaty between Mexico and the United States. It should be
pointed out that there are several treaties of great importance to the
public lands issue between 1787 and 1848 (i.e., Louisiana Purchase,
1848, by the Treaty of Guadalupe Hidalgo, Mexico ceded to the United
States the vast southwest. "The states of California, Arizona,
Nevada, Utah, and parts of New Mexico, Colorado, and Wyoming were carved
out of this combination of purchase and treaty. This treaty contains an
interesting section: ...shall be formed into free, sovereign, and
independent states and incorporated into the Union of the United States
as soon as possible, and the citizens thereof shall be accorded the
enjoyment of all the rights, advantages, and immunities as citizens of
the original states..." (Golden Fleece in Nevada, Judge Georgetta @
165). This is very interesting because we are now talking about the very
land that is to become the state of Nevada.
is an independent sovereign state as one of the original thirteen
states? It is a state that retains its sovereignty, freedom and
independence, and every power, jurisdiction and right, which is not
expressly delegated to the United States Congress by the Constitution
and shall not be deprived of territory
for the benefit of the United States. (The articles of
confederation, and 6.1 of the United States Constitution).
It is also very interesting to note that "when the original
states became free sovereign states, all the land within the border of
each state was to be either privately owned, or belong to the
state." (Golden Fleece in Nevada, Judge Georgetta @ 150). Nevada
cannot be a free sovereign state, as the original thirteen states,
unless all the lands within its borders are either privately owned or
belong to the state except those pursuant to 1.8.17. This is why the
Federal Government must purchase, with the consent of the state
legislature, land for specified purposes. The land belongs to the state, this was
the intent of the framers of the United States Constitution and is the
limit placed upon the federal government today.
is important to look at how Nevada became a state. On March 21, 1864,
Congress passed an act called "The Enabling Act."
THE ENABLING ACT STATES AS FOLLOWS:
part of Section 1: "Enable the people of the Territory of Nevada to
form a Constitution and State Government and for the admission of such
State into the Union on an Equal Footing with the original States in all
again, we have the same intent as the Treaty of Guadalupe Hidalgo of
1848 - free sovereign state as the original thirteen states.
SECTION 4, CLAUSE 3 OF "THE ENABLING ACT"
STATES AS FOLLOWS:
the people inhabiting said territory do agree to declare that they
forever disclaim all right and title to the unappropriated public lands
lying within said territory, and that the same shall be and remain at
the sole and entire disposition of the United States..."
get a clear reading and understanding of this part of-"The Enabling
Act." The United States Congress was the only one that could pass
an act to allow the people of the Nevada Territory to form a
Constitution and State Government and to admit this Territory into the
Union as a state. (4.3.1 U.S. Constitution). The people of the Nevada
Territory had no authority to pass this act. Research has shown that
first, the people of the Territory of Nevada had to give up all their
"interest" in the unappropriated lands of the Nevada territory
to the Congress of the United States so Congress could pass said lands
to the State of Nevada upon acceptance of Nevada into the Union. Then
Nevada would become a free sovereign state as the original thirteen
states relating to land.
If the unappropriated public lands referenced in "The Enabling
Act'' were not passed from Congress to the new state of Nevada and
Congress held these lands in the name of the Federal Government, it
would be a "violation of the United States Constitution as these lands are not
pursuant to 1.8.17 of the U.S. Constitution." (Golden Fleece !n
Nevada,- Judge Georgetta @ 168). Remember that the Constitution limits
what the federal government can own; it does not grant unlimited
ownership to the federal government. It would also be a violation of:
The Congressional Act of 1834, which provided any land held by the
federal government within a new state, would be held in trust for the
state until it could pass into private hands.
The Treaty of Guadalupe Hidalgo of 1848, as Nevada would be denied the
right of a free sovereign as an original state in all respects
it would be a breach of trust, and void President Lincoln's proclamation
where he said, "...do hereby declare and proclaim that the said
State of Nevada is admitted into the Union on an equal footing with the
Constitution of the United States provides the basis of government. It
divides the powers and duties between the federal and state governments,
limiting the power of the federal government, and the states retaining
all other powers.
review is the method used to answer basic questions as to what the
Constitution means in case of dispute, and confirms the state and
national governments with their constitutiona1 limits. (The Worldbook
Encyclopedia, U-V, Volume 20, page 83).
of some authorities from court cases relevant to the public lands issue.
"When the state of Alabama was admitted to the Union, one of the requirements laid down by the federal government was that the state must relinquish claim to all public lands within its borders. The compact between the United States and the state of Alabama provided that the people of Alabama forever disclaimed all right or title to the waste or unappropriated lands lying within the state and that the same would remain at the sole disposal of the United States. That is almost the same wording we have in the Nevada 'Enabling Act."' (Golden Fleece in Nevada, Judge Georgetta @ 158).
there was a dispute over the legal effect of such a compact. One party
contended the federal government was the out- and-out owner of the land
and had complete jurisdiction and sovereignty over it. The other party
contended the federal government had no power under the Constitution to
hold land in Alabama after it became a state." (Id 158).
dispute finally reached the Supreme Court of the United States in the
case of: POLLARD V. HAGEN, 44 U.S., (3 How), 212 (1845) 11 Law Ed. 565.
Fact: Pollard claimed the land in the City of Mobile under a patent
issued by an act of Congress." (Id 158). "Hagen claimed the
land by a chain of title through the state of Alabama going back to a
'Spanish Grant.' At the time Alabama was admitted to the Union as a
state, this land was under the Mobile River, a navigable stream."
United States Supreme Court held Alabama had the same jurisdiction over
navigable rivers, and the soil under them as the original thirteen
states had. The compact (Enabling Act) through which Alabama became a
state contained the provision 'that the people of Alabama forever
disclaimed all right or title to the waste or unappropriated lands lying
within the state, and that the same should remain at the sole disposal
of the United States. The United States Supreme Court held that
provision was in violation of
the United States Constitution and was therefore void.'" (Id
158). (my emphasis added)
misconception about the "Enabling Act" of Alabama and Nevada,
is that the people of the State
of Alabama disclaimed all right and title to waste or
unappropriated lands after statehood, where in Nevada the people
of the Nevada territory (before statehood) disclaimed all right
and title to unappropriated public lands in the Nevada Territory. There
is a very big difference. Could it be that the Nevada disclaimer
(Enabling Act) is being interpreted as being the people of the STATE of
Nevada rather than the people of the territory of Nevada? There is no
constitutional provision for the people of a territory to discard the
sovereignty and equal footing of a future state. The people
of the territory of
Nevada were only giving
up their interest at that
time to the unappropriated public lands.
NEVADA V. UNITED STATES 512 F. Supp. 166 (1981). The State of Nevada
brought an action alleging that the Federal Land Policy and Management
Act (FLPMA) of 1976 was unconstitutional. The question of ownership of
the public lands was not asked. The court entered judgment for
defendants that the FLMPA was constitutional.
The Ninth Circuit affirmed the lower court decision and referenced that
this case does not involve a claim to title of land. The Ninth Circuit
upholding the lower court decision, "The federal government owns
approximately 88 percent of the land within the borders of the state of
Nevada, according to the uncontroverted allegation of the state in this
case... Nevada agrees that this case does not involve the claim of title
to land... Any further challenges to actual or anticipated federal
action with respect to federally held land will arise in a different
legal and historical context from that surrounding the 1964 moratorium
that prompted this suit. " (699 F 2d 486- 488, Judge Schroeder,
purposes of the cessions of unappropriated lands to the federal
government was for the land to be sold, and the proceeds applied to
paying the public debt incurred in the Revolutionary War."
"...[t]he United States never held any right to the vacant lands in
any of the new states except temporarily to execute the trusts created
by the original states in their deeds of cession of their western lands
to the federal government. 'Both of these deeds of cession stipulated,
that all the lands within the territory ceded, and not reserved or
appropriated to other purposes, should be considered as a common fund
for the benefit of all the United States, to be faithfully and bona fide
deposed of for that purpose, and for no other use or purpose
whatever.'" (Id 170, District Court citing POLLAND V. HAGEN.
1787, Congress also specified that new states shall be admitted into the
Union "...on an equal footing with the original states in all
respects whatever." (Id 170, District Court citing POLLAND V.
the United States shall have fully executed these trusts, the municipal
sovereignty of the new states will be complete throughout their
respective borders, and they, and the original states, will be upon an
equal foot, in all respects whatever." (Id 170, District Court
citing POLLAND V. HAGEN).
The Nevada court addressing the property clause declares that "the limitations on what the federal government can do with its property, by reason of the origin of the property clause, apply only to lands within the original thirteen states..." (Id 171, citing UNITED STATES V. GRATIOT 39 U.S. (14 Pet) 526 10 L. Ed. 573) (1840).
court discussed the reasons for insertion of the property clause in the
Constitution. "The federal government was to be one of carefully
limited powers, and it had no grant of authority to receive and
administer the unappropriated lands and other properties, such as
military equipment and supplies, which the thirteen original sovereign
states wished to cede to it for the common good. " (Id 170,
District Court citing POLLAND V. HAGEN). The raising of money to pay the
public debt by selling the lands was the main object of the cessions.
The property clause provided the United States government with the power
to take possession of the properties and protect them, so that they
could be disposed of in an orderly fashion. It applies only to the
property which the states held in common at that time, and has no
reference whatever to any territory or other property which the new
sovereignty might afterwards itself acquire." DRED SCOTT V.
STANFORD, 60 U.S. (19 How) 393, 15, L. Ed. 691 (1856). "It does not
speak of any territory, nor of territories, but uses language which,
according to its legitimate meaning points to a particular thing. The
power is given in relation only to the territory of the United States.
That is, a territory then in existence, and known or claimed as the
territory of the United States. It begins its enumeration of powers by
that of deposing, in other words, meaning sale of the lands, or raising
money from them, which as we already said, was the main object of the
cessions, and which accordingly the first thing provided for in the
article." DRED SCOTT V. STANFORD, 60 U.S. (19 How) 393, 436 (1856).
In KANSAS V. COLORADO, 206 U.S. 46, "The first article, treating
legislative powers, does not make a general grant of legislative power.
It reads Article 1, Section 1, all legislative powers herein granted
shall be vested in a Congress, etc." Then, in Section 8 it mentions
and defines the legislative powers that are granted. By reason of the
fact that there is not a general grant of legislative power, it has
become an accepted constitutional rule that this is a government of
enumerated powers. Further, Kansas citing FAIRBANK V. UNITED STATES, 191
U.S. 283, 288: "We are not confronted here with a question of the
extent of the powers of Congress, but one of the limitations imposed by
the Constitution on its action, and it seems to us clear that the same
rule and spirit of construction must also be recognized. If powers
granted are to be taken as broadly granted and as carrying with them
authority to pass those acts which may be reasonably necessary to carry
them to full execution; in other words, if the Constitution in its grant
of powers is to be construed that Congress shall be able to carry into
full effect the powers granted,
it is equally imperative that, where prohibition or limitation is placed
upon the powers of Congress, prohibition or limitation should be
enforced in its spirit and to its entirety. It would be a strange fault
of construction that language granting powers is to be liberally
construed, and that language of restriction is to be narrowly and
technically construed." (Id 91).
it is useless to pursue the inquiry further in this direction. It is
enough for the purpose of this case that each state has full
jurisdiction over the lands within its borders, including the beds of
streams and other waters." (Id 93).
LOUIS-SAN FRANCISCO RY. V. SATTERFIELD 27F 2d 586 (1928), "The
legislature of a state has unlimited power to transfer jurisdiction to
the United States except as it may be restricted by state or federal
V. NEW MEXICO 426 U.S. 529, 49 L. Ed. 2d 34 (1976), is another
constitutional issue like the Nevada case. The question asked was if the
Wild and Free-Roaming Horse and Burros Act was constitutional. Here
again this case did not involve a claim of title to the land. The
Supreme Circuit Court found the Wild Horse Act constitutional.
case was a reversal of the District Court ruling. Supreme Court Justice
Marshall, "...appellees mistakenly read this language to limit
Congress' power to regulate activity on the public lands...and while the
furthest reaches of the power; granted by the Property Clause have not
yet been definitively resolved, we have repeatedly observed that the
power over the public lands thus entrusted to Congress is without
limitation... we find that, as applied to this case, the act is a
constitutional exercise of congressional power under the Property
Clause...we need not, and do not decide whether the Property Clause
would sustain the act in all of its conceivable applications." (Id
538, 539, 546).
A most recent case NEW YORK V. UNITED STATES 120 L. Ed 2d 120 (1992),
"...the Constitution question is as old as the Constitution: it
consists of discerning the proper division of authority between the
federal government and the states. We conclude that while Congress has
substantial power under the Constitution to encourage the states to
provide for the disposal of the radioactive waste generated within their
borders, the Constitution does not confer upon Congress the ability
simply to compel the states to do
so..." (Id 133).
a power is delegated to Congress in the Constitution, the Tenth
Amendment expressly disclaims any reservation of the power to the
states; if a power is an attribute of state sovereignty reserved by the
Tenth Amendment, it is necessarily a power the Constitution has not
conferred on Congress." See UNITED STATES V. OREGON 366 U.S. 643,
649, 6 L E. 552, 66 S ct 438 (1946); OKLAHOMA EX REL. PHILLPS V. GUY F.
ATKINSON CO., 313 U.S. 508, 534, 85 L. Ed. 1487, 61 S ct 1050 (1941) (Id
is in this sense that the Tenth Amendment 'states but a truism that all
is retained which has not-been surrendered.' UNITED STATES V. DARBY, 312
U.S. 100, 124, 85 1 Ed. 609, 61 S ct 451, 132 ARL 1430 (1941). As
Justice Story put it, 'This amendment is a mere affirmation of what,
upon any just reasoning, is a necessary rule of interpreting the
Constitution. Being an instrument of limited and enumerated powers, it
follows irresistible, that what is not conferred, is withheld, and
belongs to the state authorities..."' (Id 137).
exercises its conferred power subject to the limitations contained in
the Constitution." (Id 137). (my emphasis added).
United States Constitution did not allow for the Congress to regulate
private property in the states; the regulation of private property in
any state falls under the sovereignty and jurisdiction of the state's
policy power. In NEW YORK V. UNITED STATES, the court further states,
"As an initial matter, Congress may not simply commandeer the
legislative process of the states by directly compelling them to enact
and enforce a federal regulatory program." HODEL V. VIRGINIA
SURFACING MINING AND RECLAMATION ASSOCIATION INC., 452 U.S. 254, 288, 69
L Ed 2d 1, 101 S ct 2352 (1981). In HODEL, the court upheld the Surface
Mining Control and Reclamation Act of 1977 precisely because it did not
'commandeer' the states into regulation mining." The court found
that "the states are not compelled to enforce the steep-slope
standard, to expend any state funds, or to participate in the federal
regulatory program in any manner whatsoever." (Id 141).
IF THE STATE RATIFIED OR GIVES CONSENT TO ANY AUTHORITY WHICH IS NOT SPECIFICALLY GRANTED BY THE UNITED STATES CONSTITUTION, IT IS NULL AND VOID.
NEW YORK court further states: "Where Congress exceeds its
authority relative to the states; therefore, the departure from the
Constitutional plan cannot be ratified by the "consent" of
state officials." An analogy to the separation of powers among the
branches of the federal government clarifies this point. The
Constitution's division of power among the three branches is violated
where one branch invades the territory of another, whether or not the
encroached-upon branch approves the encroachment. In BUCKLEY V. VALEO,
424 U.S. 1, 118-137, 35 L. Ed. 2d 659, 96 S ct 612 (1976), for instance,
the court held that the Congress had infringed the President's
appointment power, despite the fact that the President himself had
manifested his consent to the statute that caused the infringement by
signing it into law. See NATIONAL LEAGUE OF CITIES V. USERY, 426 U.S.,
AT 842, N 12, 49 L. Ed. 2d 245, 96 S ct 2465...Congress cannot be
expanded by the 'consent' of the governmental unit whose domain is
thereby narrowed, whether that unit is the executive branch or the
state's." (Id 154).
officials cannot consent to the enlargement of the powers of Congress
beyond those enumerated in the Constitution." (Id 154). (my
the United States Constitution was adopted, it was a new basic law of
the land. Some people today consider it as the "Supreme Land
Management Plan" (Cliff Gardner, Elko County Rancher/Historian,
October 1, 1993).
evidence is clear that the United States Constitution does not delegate
any powers to Congress that allows Congress to grant to any federal
agency legal claim to all public lands within Nevada's borders, except
those pursuant to 1.8.17. Nor does Congress have any delegated power to
grant power to the federal agencies to regulate private property on the
public lands within Nevada's borders.
The Supreme Court of the United States holds that the federal
government has no right or power under the constitution to own, hold
control of, or exercise any complete municipal sovereignty over any land
of any kind except - the District of Columbia; land it had purchased
within a state, with the consent of the state legislature, for its own
governmental uses, (forts, arsenals, dockyards and other needful
buildings) and over acquired territory before it is divided into states.
That is exactly what the Constitution says and that
is what the Supreme Court said it means.
consider the case of NEW YORK V. UNITED STATES (1992) as the strongest
states rights case ever by the United States Supreme Court (Don Bowman,
Churchill County Businessman, October 27, 1993). The Supreme Court of
the United States held that Congress exercises its conferred powers
subject to the limitations contained in the Constitution, if the state
ratifies or gives consent to any authority which is not specifically
granted by the United States Constitution, it is null and void, state
officials can not consent to the enlargement of the powers of Congress
beyond those enumerated in the Constitution.
United States Constitution is clear, NEVADA LAW IS CLEAR. Nevada owns
all the public lands in Nevada and all the minerals subject to existing
rights, and has complete jurisdiction and control of these lands. NRS
Tonopah Resource Management Plan and Environmental Impact Statement and
Rangeland Reform '94 apply only to federal property in Nye County
pursuant to 1.8.17 of the United States Constitution.
if anyone can produce any evidence to the contrary, please bring your
I was born and raised in Smoky Valley, Nevada and as a Nye County
Commissioner, I strongly believe in the principals of multiple use that
will provide the greatest benefit to the people of Nye County, the State
of Nevada, and the United States. As a county commissioner, I believe in
management of our natural resources that is closest to the people and to
the resources themselves. This being with county government, as our
founders of this great country believed in when they settled America.
the strong leadership in Nye County, we can address through our Nye
County Land Use Plan, all issues presently being managed by the federal
agencies. With the appointment of a Nye County Public Lands Commission,
we can involve the actual public land users as advisors to the Nye
County Board of Commissioners.
Article 15, Section 2 of the Constitution of the State of Nevada
required that I take the oath to support, protect and defend the
Constitution and Government of the United States and the Constitution
and Government of the State of Nevada. The United States Constitution limits the land that the
federal government can own and manage. The Nevada state law clearly
establishes ownership of the public lands. The supremacy clause of the
United States Constitution makes Nevada law supreme in the absence of
power granted to Congress by the United States Constitution. My
constituents are demanding that I fulfill my oath of office by making
sure it is recognized that within the borders of the state
ALL PUBLIC LANDS.
Richard L. Carver, Vice Chairman
Nye County Board of Commissioners
HCR 60, Box 5400
Round Mountain, NV 89045-9801
The Honorable Harry Reid, U.S. Senator
The Honorable Richard Bryan, U.S. Senator
The Honorable Barbara Vucanovich, U.S. Representative
The Honorable James Bilbray, U.S. Representative
The Honorable Frankie Sue Del Papa, Nevada Attorney General
All Nevada Legislators
Mr. Dean Rhoads, Chrmn, NV Committee on Public Lands
Mr. John Marvel, Vice-Chrmn, NV Committee on Public Lands
Mr. Roy Neighbors, NV Committee on Public Lands
Mr. Mike McGinnis, NV Committee on Public Lands
Mr. Mark James, NV Committee on Public Lands
Mr. Jack Regan, NV Committee on Public Lands
Ms. Karen Hayes, NV Committee on Public Lands
Mr. John Crossley, Director, Legislative Council Bureau
Mr. Pete Morrow, NV Department of Natural Resources
Mr. Tom Ballow, Nevada Department of Agriculture
Mr. Russ Fields, Nevada Department of Minerals
Mr. Willie Molini, Nevada Department of Wildlife
Ms. Pamela Wilcox, Nevada Division of State Lands
Mr. James Currivan, BLM, Battle Mountain District Manager
Mr. Billy R. Templeton, BLI1, Nevada State Director
Mr. James Elliott, BLM, Carson City District Manager
Mr. Kenneth Walker, BLM, Ely District Manager
Mr. Rodney Harris, BLM, Elko District Manager
Mr. Ben Collins, BLM, Las Vegas District Manager
Mr. Theodore Angle, BLM, Tonopah Resource Area Manager
Mr. Wayne King, BLM, Shoshone Resource Area Manager
Mr. James Phillips, BLM, Lahontan Resource Area Manager
Mr. John Mattheissen, BLM, Walker Resource Area Manager
Mr. Runore Wycoff, BLM, Stateline Resource Area Manager
Mr. Gerald Smith, BLM, Schell Resource Area Manager
Mr. Gene Drais, BLM, Egan Resource Area Manager
Mr. R.M. "Jim" Nelson, Supervisor, Toiyabe National Forest
Mr. John Inman, Supervisor, Humboldt National Forest
Mr. David Grider, USFS, Tonopah District Ranger
Mr. Dayle Flanigan, USFS, Austin District Ranger
Mr. Guy Pence, USFS, Carson District Manager
Mr. Jim Tallerico, USFS, Las Vegas District Ranger
Mr. Jerry L. Green, USFS, Ely District Ranger
Mr. John S. Turner, Director, U.S. Fish & Wildlife Service
Mr. David Harlow, Nevada, US Fish & Wildlife Service
All Nevada County Commissioners
All Nevada County District Attorneys
Nevada Farm Bureau
Nevada Cattlemen’s Association
Nevada Sheep Growers Association
Nevada Mining Association
Nevada Miners & Prospectors Association
Nevada Association of Cities
Nevada League of Cities