Request of Lander County and other Nevada Counties for Quit-claim from the State to the Individual Counties of State Interest in Certain Public Lands Situate Within Said Counties



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FOR THE GOVERNOR AND ATTORNEY GENERAL OF NEVADA
In the Matter of the Request of Lander County and other Nevada Counties for Quit-claim from the State to the Individual Counties of State Interest in Certain Public Lands Situate Within Said Counties.


BRIEF OF LANDER COUNTY
This Brief Is Divided into Four Major Sections.
Section I discusses the status of the Original Thirteen nation-states when they created the United States after defeating the English crown in the war of the American Revolution. That status of the original thirteen at the ratification of the 1789 Constitution is the benchmark by which "Equal Footing" is determined for those states subsequently admitted to the Union.
Section II discusses application to Nevada of the Equal Footing Doctrine and related Constitutional provisions which lead to the conclusion that title to the public lands within the State of Nevada became vested in Nevada at Statehood.
Section III addresses the theories and cases cited by those who claim that the public lands in Nevada are federal property rather than state property, and demonstrates that the cases have been misread and incorrectly cited to support the incorrect proposition of federal ownership.
Section IV addresses the effect on the State of Nevada of the proposed quit-claim action.

SECTION ONE
I. ORIGINAL THIRTEEN HELD PUBLIC LANDS FROM KING OF ENGLAND.
At least since 1066 and the coronation of William the Conqueror after the Battle of Hastings, all title to lands in England was vested in the King as the ultimate sovereign. The King granted the use of lands, and he could and often did take the right of use away from grantees who proved disloyal or fell out of favor. The famous Magna Carta represents, more than anything else, an effort by the realm's nobles to limit the King's ability to dis-seize them of the lands assigned to them. However, the Great Charter did not in any way limit the King's power to deal with new lands obtained by conquest, discovery or otherwise.
The English King claimed most of the Eastern Seaboard of North America through "right of discovery." The King made feudalistic grants of the newly-discovered lands to the various colony companies. Some of these grants extended westward from the Atlantic Ocean to the Mississippi River, and one grant (Virginia) arguably extended to the Pacific Ocean, although France and later Spain would have disputed such a claim.
The Colonies successfully rebelled. During the Revolutionary War Virginia appointed George Rogers Clark as a colonel of Virgina militia to secure Virginia's western lands. That Col. Clark did, at least as far as the western boundary of what today is Illinois, the Mississippi River.
After the warring parties officially terminated hostilities with the signing of the Treaty of Paris, the Original Thirteen found themselves by right of conquest (right of rebellion?) in the status of nation-states with all the attributes of sovereignty, including ownership of the soil of all their public lands which had not passed into private ownership. Virginia, for example, rewarded members of Col. Clark's tiny expeditionary force with land grants in the west, now Ohio, Indiana and Illinois.
Not all of the Original Thirteen had Western lands. Some were bounded by the ocean and other former colonies, now nation-states, so their borders were fixed.
Such was the status of the Original Thirteen when they banded together under the Articles of Confederation to form the United States, a voluntary association with no powers except those expressly delegated to it by its members, sovereign nation-states.

II. LANDS CEDED TO CONFEDERATION TO RETIRE REVOLUTIONARY WAR DEBT.
The members of the Confederation agreed that the Revolutionary War debt incurred by the Continental Congress, the predecessor to the Confederation, should be assumed by the Confederation. However, the Confederation had no resources to retire that obligation. The Confederation owned no land, had no aasets except for moneys grdgingly supplied by its members, who themselves were all bu bankrupted by their own war obligations.
The nation-states which possessed public domain in the West volunteered -- under the Articles of Confederation -- to cede those lands to the Confederation under strict rules of cession. The rules provided for rapid sales of the land to private owners to raise funds to retire the war debt, and creation of new states on an Equal Footing with the Original Thirteen as soon as populations might warrant.
It is important to realize that the cessions were voluntary, not coerced by the Confederation which was all but powerless to coerce its members.
The cessions of the Western (Midwestern) lands were ceded for an express, limited purpose. After cession they were not federal property since the Confederation did not have an unlimited right to deal with them as it might choose. Had the Confederation not followed the rules of cession, the grantor nation-states would have been entitled to reclaim both soil and jurisdiction.
The oft-cited Northwest Ordinance was adopted by the Congress of the Confederation to establish rules for the disposal of the Western lands and application of the proceeds to the war debt.

SECTION TWO
III. 1789 CONSTITUTION ADOPTED; NORTHWEST ORDINANCE RATIFIED.
The Confederation proved too weak a vehicle for a national government, and a Constitutional Convention was called to draft a new organic document. The Federalist Papers and the Anti-Federalist Papers record the arguments about the new Constitution, but both the Federalists and Anti-Federalists were concerned that the new national government not have unlimited powers. The two groups differed primarily in their concept of the controls which would be required if the new national government was to be kept in its proper place.
Upon ratification of the Constitution of the United States of America by the states, the Confederation ceased to exist, and a new nation came into being, a republic endowed with certain, express, limited attributes of sovereignty granted to it by its founder nation-states who thereby voluntarily assigned portions of their sovereignty to the new republic. The United States then, as now, possesses no sovereign powers except those expressly granted to it by the Constitution, and those necessarily implied from the specific grants.
The obligations of the Articles of Confederation were extended to the new republic in the Constitution. One of the earliest acts of the new republic was to ratify the Confederation's enactment of the Northwest Ordinance.
The lands ceded to the Confederation, and vested in the United States as successor to the Confederation, were the first "territories" of the new republic. But the new republic did not hold unlimited dominion over those lands, as it does over territories acquired by discovery, conquest, purchase, or treaty. The cession by the states required immediate disposal of the soil and creation of new states. The ceded lands were not federal property in the sense of unlimited fee ownership by the federal government.
The new Constitution:
1) Granted the new national government supreme, plenary and absolute power to act with respect to federal property, but the Constitution's supremacy clause does not give the federal government any substantial power over non-federal property;
2) Placed express, extensive limitations upon the national government's power to obtain or hold property which is to become federal property;


3) Granted the national government power to act as local or municipal government for territories so long as they continued in territorial status, terminating such power when particular lands are admitted to the union as states on a footing equal to the original thirteen;
4) Limited the national government's "supremacy" to those attributes of sovereignty expressly granted to it in the Constitution, retaining all other powers to the states or to the people.
The attributes of sovereignty retained by the Original Thirteen are extended by the Equal Footing Doctrine to after-admitted states. In 1992, the U.S. Supreme Court held, in New York v. United States, 505 U.S. , 120 L.Ed.2d 120, 112 S.Ct. , that states cannot transfer any portion of their retained constitutional sovereignty to the federal government. "State officials . . . cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution." At 154.
The Constitutional propriety of all public land actions of the federal government -- Legislative and Executive -- must be assessed by application of those fundamental Constitutional principles.

IV. "EQUAL FOOTING" DOCTRINE A CONSTITUTIONAL KEYSTONE.
The "Equal Footing" Doctrine has been accorded great deference by the United States Supreme Court for 150 years, from Pollard's Lessee v. Hagan, infra through Utah Division of State Lands v. U.S., infra and as recently as 1992 in New York v. U.S., supra. No U.S. Supreme Court decision has backed away from the interpretation of the Equal Footing Doctrine enunciated in Pollard.
The seminal Equal Footing Doctrine case in the century, at least until New York v. U.S., supra, is Coyle v. Smith, aka Coyle v. Oklahoma, infra. In Coyle the Supreme Court held:
1) The Equal Footing Doctrine means just that; each newly-admitted state is in every way, in every attribute of sovereignty, the equal of the Original Thirteen;
2) Because of the Equal Footing Doctrine territorial ordinances cannot be made binding on the new states unless the territorial acts are ratified by the new state after admission to the Union.
Coyle clearly stands for the proposition that the [Nevada] Territory's ordinance giving up any claim to the public lands on behalf of the future state is void and of no effect.


And, in the light of New York v. U.S., it must be noted that a new state, even voluntarily and under no coercion, cannot divest itself of any of its inherent attributes of sovereignty and transfer those attributes to federal government. New York holds:
1) The Constitution is a system of checks and balances, operating horizontally (Executive, Legislative and Judicial branches) and vertically (state governments and the national government). Each unit serves as a check on other units.
2) States cannot cede any of their authority, Constitutional sovereignty, to the federal government, nor can the federal government cede any of its Constitutional sovereignty to the states or a state, because to do so would upset the system of checks and balances.
Therefore, if the State of [Nevada] today tried to cede its public lands to the national government, it could not do so.
(In Coyle Congress required the Oklaahoma Territory, as a prerequisite to statehood, to agree to maintain the state capital at the territorial capital ((Guthrie)) at least until 1913. Such a territorial ordinance was adopted. Oklahoma became a state in 1897, and in 1910 its Legislature moved the capital to Oklahoma City. Parties objecting to the move sued, and the matter soon reached the U.S. Supreme Court. Held: Congress has no right to determine the location of the capital of any of the Original Thirteen; ergo, Congress had no right to enforce the territorial capital ordinance against Oklahoma. Further held: Territorial acts cannot bind after-created states.)
Pollard's Lessee, infra, in 1845 was the first significant Equal Footing case decided by the U.S. Supreme Court. It arose in Alabama, a state created out of a territory ceded to the Confederation for war debt retirement by the state of Georgia. The U.S. Supreme Court held that ownership of the land under navigable waters -- streams and lakes -- is a significant incident of state sovereignty. In Pollard and Utah Division of State Lands, infra, and other cases ancient and recent, the Supreme Court has rebuffed national government claims that it, not the state, owned the streams and lakebeds. The Equal Footing Doctrine is cited consistently as authority; i.e., the Original Thirteen own their streambeds and lakebeds, therefore so do the after-admitted states. In Utah the Bureau of Land Management was restrained from issueing federal oil exploration leases for the bed of Utah Lake because the land was held to belong to the state.
State ownership of the beds of navigable streams has been upheld even against claims of Indian nations based on U.S.-Indian treaties. See Montana v. U.S., infra.


Oddly enough, more than 200 years after adoption of the Constitution of 1879, extensive review of Supreme Court cases indicates that the Equal Footing Doctrine never has been directly argued in connection with a state claim over dry public lands. The doctrine has been argued repeatedly and successfully in navigable water cases, but not in the state sovereignty/dry lands context.
Consequently, some opponents of state ownership of the public lands, primarily federal bureaucrats and certain self-styled environmental groups, recently have attempted to distinguish between the submerged land cases and the dry public lands. It is very hard to see how Equal Footing can protect and further state sovereignty over submerged lands - as the high court says it does - if it does not also protect and further state sovereignty over dry lands.
Surely the fact that the soil of one portion of a state is inundated and another portion is dry land cannot give rise to a difference in Constitutional protection, a difference of Constitutional dimension?
If, as the U.S. Supreme Court invariably has declared, the principles of Equal Footing and state sovereignty require holding that title to the streambeds and lakebeds automatically passes to new states at statehood, why do those same principles not require holding that title to the public lands pases to the new states at statehood?
What real difference is there?
The answer appears to be that there is no real difference. The opponents of state ownership attempt to discern a difference in order to support their position, but the "difference" defies any rational analysis. No Supreme Court case has so held, and the opponents of state ownership simply hope to discourage the

Western states from prosecuting an appropriate test case to the High Court.


The Original Thirteen held title to their public lands, both dry and submerged, when they relinquished their nation-state status and became states within the federal Republic. Some of the Original Thirteen, while independent nation-states, voluntarily ceded some of their territory to the Confederation which passed those lands on to the new republic for the specific, limited purpose of retiring the Revolutionary War debt, an obligation of the Confederation assigned by the Constitution to the new Republic.
Those voluntary acts do not provide authority for the federal government to extort, to coerce public lands out of prospective states as a condition of admission to statehood. The doctrine of Equal Footing is grossly offended by such federal extortion.


The mere fact that Congress has engaged is such extortion in the case of [Nevada] and many other states west of the Mississippi shows that the federal government recognizes that title to territorial lands not already in private fee would pass automatically to a new state at statehood unless those lands somehow are conveyed to the United States. Were that not so, there would be no reason for Congress to extort such a promise of cession from the inhabitants of a territory seeking statehood, as was extorted from Nevada and most of the other Western states.
But Coyle, supported in 1992 by New York v. United States, stands foursquare for the principle that such extortion of the future state is a violation of the Equal Footing Doctrine, of the Constitution. Coyle is not a public lands ownership case as such; its context is the lack of federal authority, because of Equal Footing, to extract any cession of state rights from the territorial convention which would be binding on the state after its admission to the Union. Coyle's broad language appears to apply to all Equal Footing sovereignty; the case contains no language limiting its holding to political sovereignty. Likewise, New York v. U.S. is not a public lands ownership case; New York simply declares that a state cannot under the Constitution, even voluntarily, transfer any of its "incidents of sovereignty" to the federal government.
The Coyle decision was handed down only months prior to the admission to statehood in 1912 of Arizona and New Mexico territories, the last of the adjacent 48 states to be created. Consequently, Coyle languished, not to be cited in the public lands context until the colonialist policies of the federal bureaucracy gave rise to the "Sagebrush Rebellion" of the West in the late 1970's and the "Son of Sagebrush Rebellion" movement of the 1990's. During that period, and until the present, courts have assumed, without ever addressing the issue, that the federal government owns the public lands.
When Congress in 1864 passed the Enabling Act authorizing the Territory of Nevada to hold a convention to draft a state constitution, the Act required the Territory to cede to the United States, as a condition of Admission to statehood, all claim to the public lands within the territory. The Territory, anxious to become a state, passed such a Territorial ordinance. The cession never was included in the Nevada Constitution. Similar cessions were extorted by Congress from other Western Territories; their Enabling Acts required cession as a condition of Statehood. Unless ratified during statehood, those grants of cession by the precedent territories are invalid, per Coyle. And cessions granted after Statehood are invalid if they violate the state sovereignty [rinciples enunciated in New York.


Today Coyle, cited approvingly by the U.S. Supreme Court just two years ago in New York, points an accusing finger at the disregard by Congress and the federal bureaucracy of Equal Footing and state sovereignty on the public lands of [Nevada] and the West. Coyle, unless overruled in a century and a half of Equal Footing jurisprudence -- and since it has been supported resoundingly by the 1987 Utah and the 1992 New York cases, that seems unlikely -- demands that the wrongful federal appropriation of the public lands of [Nevada] and the other Western states be terminated and the adverse effects of those appropriations reversed.
There is no real doubt. The Equal Footing cases of the United States Supreme Court lead inescapably to the conclusion that title to the soil of the public lands in [Nevada] Territory passed to the state of [Nevada] at statehood on [October 31, 1864]. Federal occupation and control of those lands since that date has been wrongful, or at most a trusteeship for the benefit of [Nevada], the actual owner.
{Ed. note: The trusteeship scenario would seem to be best described by the state being the Trustee and the federal agency being the general manager and the Citizens of the state being the beneficiaries for who's benefit it is managed and entrusted. In any trust of this type, the Trustee has the right and obligation to remove and replace any manager acting contra to the interests of the beneficiaries.}
There is, of course, a long line of Nevada state cases which assume -- generally without examination of the issue -- that the ordinance of cession adopted by the Territorial Convention is binding on Nevada. Some of those cases pre-date the 1911 U.S. Supreme Court decision in Coyle; others are post-Coyle cases which appear to depend on the earlier Nevada case law as precedent without consideration of the Coyle holding.
The same incorrect assumption that territorial cessions are binding on the after-admitted states has been made by other Western states. Cases from Oklahoma, Utah and Idaho, some of them quite recent, come to mind. Such cases are inherently invalid as authority for the federal government's claim to own the public lands of the West. Unless cases consider the rule of Coyle,, in the light of New York v. U.S., and demonstrate how Coyle and New York do not apply to a particular set of facts, those cases simply are wrongly decided and should be ignored.
The U.S. Supreme Court holdings in Coyle, New York and the courts of other Equal Footing cases are the paramount authority, not state case law.
V. THE UNDERLYING ISSUE -- THE LIMITS OF STATE SOVEREIGNTY.
The underlying issue involved in the Equal Footing Doctrine is the limits of state sovereignty. That issue is not some ancient, discarded theory that is gone with the wind and dead since the Civil War. On the contrary, this is a very real and cogent issue in the 1990's. The Supreme Court in 1992 said:

"State soverignty is not just an end in itself; 'Rather, federalism secures to citizens the liberties that derive from the difffusion of sovereign power.' " (Citation omitted). "Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." (Citation omitted).
"Where Congress exceeds it 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 of the encroachment." New York v. U.S., infra.
Over and over again the opponents of applying the Equal Footing Doctrine to land point to the various Congressional Acts, the territorial ordinances of admission, and the case law automatically accepting all of them without their validity having been tested therein. State after state [had to] accept their terms of surrendering the public land or face the probability of remaining in territorial status indefinitely. Apparently, only Oklahoma dared to attack its ordinance and act of admission after attaining statehood, and that lone attack was successful. These acts, ordinances and case law are akin to the acceptance of a legislative veto by many presidents for many years. The Supreme Court said:
"In INS v. Chadha, (citation omitted) we held that the legislative veto violated the constituional requirement that legislation be presented to the President, despite Presidents' approval of hundreds of statutes containing a legislative veto provision. The constitutional authority of 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 States."
"State officials ... cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution." New York v. U.S., infra.
In short, even where Congress is successful in bribing or coercing a state or another branch of government into consenting toa relinquishment of their respective rights, that consent is void.

SECTION THREE
VI. PROPERTY CLAUSE APPLIES TO "FEDERAL", NOT "PUBLIC" LANDS. SUPREMACY CLAUSE APPLIES ONLY TO AREAS WHERE FEDERAL GOVERNMENT IS GRANTED AUTHORITY BY THE CONSTITUTION.
Opponents of orderly correction of the federal government's misappropriation of the public lands in the West assert that the "Sagebrush Rebellion" and its 1990's progeny are mere "buffoonery" because, among other reasons, the Property Clause of the United States Constitution grants to the United States as superior sovereign the right to control federal lands.
The Property Clause does indeed totally empower the United States with respect to federal lands, federal property. But "federal lands" does not equate necessarily to "public lands". In fact, the two phrases refer to two different types of real estate.
The lands to which the federal government can hold title are limited strictl by the Constitution -- forts, arsenals, dockyard, post-offices, etc. And the Constitution expressly grants the federal government authority over territorial lands while they remain territories.
During territorial status the federal government has the right to withdraw lands within the territory for proper federal purposes - forts, dockyards, arsenals, post offices, post roads, etc. There is no authority, in fact, a denial of authority, in the Constitution for the federal government to withdraw territorial lands for other national purposes. Once a state becomes a state, the Constitution provides that the national government must obtain state approval if the national government wishes to acquire a portion of the state's soil for proper (Constitutionally allowed) federal purposes.
A two -pronged test applies. Before the federal government can acquire or withdraw any land from a territory or state, the acquisition or withdrawal must be for a national purpose authorized by the Constitution. Once the purpose is determined to be proper, if the acquisition is soil owned by the state, the Constitution requires that the state must agree to the acquisition. And, according to New York, infra, the state can agree only if the acquisition is for one of the Constitutionally-permitted national purposes.
It may be akin to an oxymoron, but the Property Clause of the Constitution only grants authority to the federal government to deal in plenary fashion with federal property. Before the Property Clause or the Supremacy clause comes into play, the property in question must be determined to be federal property.


If the question of title is not raised, the courts will not rule on title. Consequently, there are numerous cases which hold that the federal government is supreme within its areas of supremacy, that the federal government may act as it pleases with respect to federal property, which do not address the threshold issues of title or jurisdiction [and venue, without which there can be no jurisdiction].
Where those cases are cited as authority for title or jurisdiction, they are improperly cited.
One of the classic examples of a case often cited incorrectly is Kleppe v. New Mexico, infra. Kleppe often is cited for the proposition that the public lands are federal property. The case doesn't say that at all. All Kleppe says is that state law does not govern on federal property when state and federal laws conflict. Kleppe does not declare that the public domain is federal property; it simply does not address that issue.
Many other cases are often improperly cited for the proposition that the public lands are federal property, and those cases on examination generally do not address the question of ownership or Equal Footing. Such cases include:
United States v. Gratiot, infra, dealt with lands ceded by Pennsylvania and Virginia to the Confederation for war debt retirement. The issue in Gratiot was not ownership at all, but whether the prase "dispose of" included the ability to lease as well as to sell. (Illinois could not claim title to the public lands because they had been deeded away previously by Pennsylvania and Virginia.) Title was not even an issue in Gratiot.
Grissar v. McDowell, infra. Though perhaps it should have been, Equal Footing was not even argued in this case. San Francisco sought to claim title to a fort established during territorial status on the doubtful claim that it held title under Spanish/Mexican pueblo law. San Francisco's claim was not binding under the previous sovereign, and could not overcome the national government's withdrawal of land for a fort during territorial days. It should be noted that the Equal Footing Doctrine does not take issue with federal title to forts, post offices, and other such enumerated Article 1, Section 8 property when that property is properly acquired during territorial status. It is not disputed that the federal government could have withdrawn property for the enumerated federal purposes during Territorial days; in [Nevada] and most of the West the fact is that the United States did not make such withdrawals.
Butte City Water Co. v. Baker, infra. Title to the public lands was not at issue. Both sides assumed the full validity and applicability of the federal acts and merely argued over the meaning of those acts. No question of federal v. state ownership was decided (or asked).

Van Brocklin v. Anderson, infra. Congress had passed an act requiring all land owners in the area of insurection to pay in person a real estate tax on their holdings. Any Confederate soldier who showed up to pay his tax was arrested for treason so few appeared to pay, and many properties were confiscated fo non-payment. The U.S. Supreme Court upheld the confiscations. the Van Brocklin issue was the legitimacy of the taxes rather than title to land (title was involved, but only as a consequence of the legitimacy or illegitimacy of the taxes.) The case has absolutely nothing to do with the Equal Footing Doctrine.
Stearns v. Minnesota, infra. At first blush Stearns seems to be of some help to opponents of applicability of the Equal Footing Doctrine. Stearns, in obiter dicta, recites and assumes the validity of a territorial convention's assignment of land to the federal government as a condition precedent to admission to the Union. However, there are several cogent problems with this view. First and foremost, the opinion wherein that dicta appears is not a majority opinion. The case was split 4-4 with Justice Brown breaking the tie. His basis for concurring was that it would be inequitable to allow the State of Minnesota to suddenly question the validity of the tax commutation at issue after both the Legislature and the Supreme Court of Minnesota had recognized such validity for thirty years. In effect, Justice Brown merely argued the equitable doctrine of laches. 45 L.Ed. at 178.

(Otherwise, thge doctrine of laches has never been viewed by the U.S. Supreme Court as a doctrine which can cost a state or a person rights guaranteed by the Constitution.)


The second problem with the apparent dicta of Stearns is that it was clearly overruled by the Coyle case 11 years later, and that was a clear majority of the court with only two dissenting votes. Coyle at 580, infra.
Third, the issue of title to public lands was not argued or even mentioned by the parties and is not necessary to the Stearns opinion so the opinion is indeed obiter dicta on this point. In fact it is hard to distinguish Stearns from Kleppe in this regard.
Fourth, the major assertion in the Stearns plurality opinion that a state can enter into a binding compact with the federal government has been at least somewhat limited by the very recent ruling in New York v. U.S., infra. In Stearns the legitimacy of the state's grant of the public lands to the federal government not challenged. New Yprk v. U.S. indicates that if the grant had been challenged, and if a state cannot bargain away its sovereignty as Coyle and New York suggest, and if title to the public land is an incident of that sovereignty as the Pollard line of cases implies; then the Stearns plurality's assertion of title in the federal government would never have been made.


Fifth, at least part of Minnesota was subject to the earlier noted grants of land by the Original Thirteen to the Confederation. Therefore, the Pollard arguments would apply to Stearns.
Light v. U.S., infra. Again, the parties assumed federal ownership and did not dispute the matter. Whatever solace Light might provide to those who oppose state ownership of the public lands is vitiated by the fact that Light predates Coyle, infra, and therefore is subject to Coyle's declaration of Constitutional Law.
Utah Power and Light Co. v. U.S., infra. In its first paragraph this opinion assumes without deciding and without any contesting of the fact by any of the parties involved nor by the amicus briefs that the federal government owned the land. The case is subsequent to Coyle, but does not consider Coyle's Equal Footing rationale because that was not presented to the court for consideration.
The line of Nevada cases which assumes, without analysis, that the public lands are the property of the federal government, are simply wrongly decided in the light of Coyle and New York v. U.S.. Nevada's first case was decided without the benefit of Coyle's jurisprudence, and Nevada courts have followed Nevada precedent without any re-examination of the Constitutional issue.
Nevada's Legislative Counsel has asserted that Coyle itself allows for the power of Congress to keep control over the public lands in a statehood enabling act. See page 4 of Letter (opinion) to Assemblyman Roy Neighbors dated November 5, 1993, concerning federal authority over the public lands and A.B. 733. Learned counsel does not state his specific citation for claiming that Coyle holds that "Congress may embrace in an enabling act conditions relating to matters wholly within its sphere of powers, such as regulation of interstate commerce, discourse with Indian tribes and disposition of public lands." However, it would appear that he is referring to some language taken out of context. The full quote, with emphasis added, says:


"It may well happen that Congress should embrace in an enactment indroducing a new state into the Union legislation intended as a regulation of commerce among the states, or with Indian tribes situated within the limits of such state, or regulations touching the sole care and disposition of the public lands or reservations therein, which might be upheld as legislation within the sphere of Congress. But in every such case such legislation would derive its force not from any agreement or vcompact with the proposed new state, nor by reason of its acceptance of such enactment as aterm of admission, but solely because the power of Congress extended to the subject, and therefore would not operate to restrict the state's legislative power in respect of any matter which was not plainly within the regulating power of Congress. (citaions omitted)
"No such question is presented here." Coyle at 574, 55 L.Ed. at 860-861.
Clearly, then, Coyle does not in any way, shape, or form stand for the legitimacy of the federal government's attempts to seize the public lands by force of statehood enabling acts. Quite the contrary. Coyle states that any such power (over public lands, Indian tribes, commerce among the states, and so on) must derive from some other source apart from the enabling act legislation. No other source exists for the federal government's claim of title to the public land in Nevada and other Western states. Such sources do exist, however, as to those other asserted powers noted by the Coyle court, independent of the unconstitutional enabling act legislation.
Arizona v. California, infra, also often is misapplied. The Supreme Court said "Pollard, supra, could not be read to limit "the broad powers of the United States to regulate navigable waters under the Commerce Clause and to regulate government lands under art. 4, sec. 3, of the Constitution." That is beyond dispute. This brief does ot in any way contest the federal government's power and authority to regulate its property. The dispute is purely a matter of title. This brief asserts that public land is state property, not federal; and therefore cases like Arizona and Kleppe, cases that deal with federal power over federal land, simply are irrelevant.
SECTION FOUR
NRS 321.605 et seq. declares the intent of the Nevada Legislature "to provide an orderly procedure for the processing of application by the state, its agencies and political subdivisions for lease or purchase of the public lands pursuant to the provisions of the Public and Recreational Purposes Act of 1926..."
Lander County is not asking Nevada to countenance a purchase of public land pursuant to those statutes. Rather, Lander seeks a quit-claim from the State of Nevada's interests, whatever that may be determined to be, in certain lands where Lander wishes to construct a recreational resoervoir.
If Lander is successful in obtaining such a quit-claim, it is prepared to challenge the federal government's claim to ownership and dominion over the subject real property. Such a challenge, if carried to the United States Supreme Court, would settle once and for all the question of ownership of the public lands in Nevada and the West.


It certainly would be preferrable for the Attorney General of Nevada to take on this battle, since the Attorney General probably could obtain original jurisdiction in the U.S. Supreme Court, a tactic unavailable to Lander County. However, if the Attorney General does not feel comfortable in mounting such a legal challenge, Lander County, assisted by several other rural counties, is prepared to fund and prosecute the fight.
Nevada presently is not defending its claim to ownership of the public lands (see, NRS 321.596). Therefore, Nevada would not be losing anything of current value if it approves such a quit-claim. And the state would benefit greatly if Lander County's legal tactics are successful. And Nevada incurs no liability thereby.
Respectfully submitted July 12, 1994
LANDER COUNTY, a political subdivision of the

State of Nevada.

By

Zane Stanley Miles, District Attorney.


NOTE - Lander County gratefully recognizes the assistance of William E. Schaeffer, Eureka County District Attorney, in preparing this brief. Mr. Schaeffer's research and writing has bee extensively appreciated. - ZSM

TABLE OF POINTS, AUTHORITIES and CITES
CITATION SHOWN AT

New York v. U.S., 505 U.S., 120 L.Ed.2d 120, 112 S.Ct. 4, 5, 7, 8,

9, 10, 12, 13.


Pollard's Lessee v. Hagan, 3 Howard (44 U.S.) 212, 11 L.Ed. 565 (1845) 4, 5, 12, 13,14
Utah Division of State Lands v. U.S., 482 U.S. 193, 107 S.Ct. 2318, 96 L.Ed.2d 162 (1987) 4, 5, 8
Coyle v. Smith aka Coyle v. Oklahoma, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853 (1911) 4, 5, 7, 8, 12, 13, 14
Montana v. U.S., 450 U.S. 544, 67 L.Ed.2d 493, 101 S.Ct. 1245 (1981) 5
INS v. Chadha, (omitted) 9
Kleppe v. New Mexico, 426 U.S. 529, 44 L.Ed.2d 34, 96 S.Ct. 2285 (1976) 11, 12, 14
United States v. Gratiot, 39 U.S. 526, 10 L.Ed. 573 (1843) 11
Grissar v. McDowell, 73 U.S. (6 Wall) 363, 18 L.Ed. 863 (1868) 11
Butte City Water Co. v. Baker, 196 U.S. 119, 49 L.Ed. 409 (1905)

11
Van Brocklin v. Anderson, 117 U.S. 151, 29 L.Ed. 845 (1886) 12


Stearns v. Minnesota, U.S. , 45 L.Ed. 174 12, 13
Light v. U.S., 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 570 (1910) 13
Utah Power and Light Co. v. U.S., 61 L.Ed. 792 (1916) 13
Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963) 14


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