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.

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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 nationstates, 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 page 2 of 17

sovereign page 3 of 17 .those expressly nation-states. delegated to it by its members.

the Confederation had no resources to retire that obligation. However. and creation of new states on an Equal Footing with the Original Thirteen as soon as populations might warrant. The rules provided for rapid sales of the land to private owners to raise funds to retire the war debt. After cession they were not federal property since the Confederation did not have an unlimited right to deal with them as it might choose.under the Articles of Confederation -. The cessions of the Western (Midwestern) lands were ceded for an express.to cede those lands to the Confederation under strict rules of cession. The Confederation owned no land. The members of the Confederation agreed that the Revolutionary War debt incurred by the Continental Congress. page 4 of 17 . 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. the grantor nation-states would have been entitled to reclaim both soil and jurisdiction. LANDS CEDED TO CONFEDERATION TO RETIRE REVOLUTIONARY WAR DEBT. had no aasets except for moneys grdgingly supplied by its members.II. The nation-states which possessed public domain in the West volunteered -. It is important to realize that the cessions were voluntary. who themselves were all bu bankrupted by their own war obligations. limited purpose. the predecessor to the Confederation. Had the Confederation not followed the rules of cession. not coerced by the Confederation which was all but powerless to coerce its members. should be assumed by the Confederation.

as it does over territories acquired by discovery. purchase. and those necessarily implied from the specific grants. and a Constitutional Convention was called to draft a new organic document. and vested in the United States as successor to the Confederation. but the Constitution's supremacy clause does not give the federal government any substantial power over non-federal property. The ceded lands were not federal property in the sense of unlimited fee ownership by the federal government. a republic endowed with certain.SECTION TWO III. 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. The obligations of the Articles of Confederation were extended to the new republic in the Constitution. possesses no sovereign powers except those expressly granted to it by the Constitution. and a new nation came into being. or treaty. the Confederation ceased to exist. NORTHWEST ORDINANCE RATIFIED. conquest. The lands ceded to the Confederation. express. page 5 of 17 . The cession by the states required immediate disposal of the soil and creation of new states. 1789 CONSTITUTION ADOPTED. plenary and absolute power to act with respect to federal property. were the first "territories" of the new republic. The Confederation proved too weak a vehicle for a national government. 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. But the new republic did not hold unlimited dominion over those lands. The Federalist Papers and the AntiFederalist Papers record the arguments about the new Constitution. One of the earliest acts of the new republic was to ratify the Confederation's enactment of the Northwest Ordinance. The new Constitution: 1) Granted the new national government supreme. but both the Federalists and Anti-Federalists were concerned that the new national government not have unlimited powers. Upon ratification of the Constitution of the United States of America by the states. as now.

3) Granted the national government local or municipal government for territories continued in territorial status. . IV. Supreme Court decision has backed away from the interpretation of the Equal Footing Doctrine enunciated in Pollard. In 1992. retaining all other powers to the states or to the people. . terminating particular lands are admitted to the union footing equal to the original thirteen. infra.S.must be assessed by application of those fundamental Constitutional principles. Oklahoma. U. . each page 6 of 17 . that states cannot transfer any portion of their retained constitutional sovereignty to the federal government..S. at least until New York v. cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution. "State officials . in New York v. 505 U. Supreme Court held. Hagan. .S. is Coyle v. In Coyle the Supreme Court held: 1) The Equal Footing Doctrine means just that. supra. "EQUAL FOOTING" DOCTRINE A CONSTITUTIONAL KEYSTONE.S. United States. 120 L. The "Equal Footing" Doctrine has been accorded great deference by the United States Supreme Court for 150 years." At 154.Legislative and Executive -. supra. 112 S. aka Coyle v.2d 120. The seminal Equal Footing Doctrine case in the century. The attributes of sovereignty retained by the Original Thirteen are extended by the Equal Footing Doctrine to afteradmitted states. The Constitutional propriety of all public land actions of the federal government -.2) Placed express. U.Ct.Ed.S... No U. U. from Pollard's Lessee v. Smith. infra and as recently as 1992 in New York v. power to act as so long as they such power when as states on a 4) Limited the national government's "supremacy" to those attributes of sovereignty expressly granted to it in the Constitution. infra through Utah Division of State Lands v. extensive limitations upon the national government's power to obtain or hold property which is to become federal property.S. the U.

and in 1910 its Legislature moved the capital to Oklahoma City. 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.S. a state created out of a territory ceded to the page 7 of 17 . in the light of New York v. Held: Congress has no right to determine the location of the capital of any of the Original Thirteen. even voluntarily and under no coercion. infra.S. in every attribute sovereignty. Such a territorial ordinance was adopted.. the equal of the Original Thirteen. Parties objecting to the move sued. Supreme Court. to agree to maintain the state capital at the territorial capital ((Guthrie)) at least until 1913. Congress had no right to enforce the territorial capital ordinance against Oklahoma. It arose in Alabama.) Pollard's Lessee. of 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. Therefore. And. Oklahoma became a state in 1897. to the federal government. Supreme Court. Constitutional sovereignty. New York holds: 1) The Constitution is a system of checks and balances. it could not do so. Each unit serves as a check on other units. (In Coyle Congress required the Oklaahoma Territory. nor can the federal government cede any of its Constitutional sovereignty to the states or a state. Further held: Territorial acts cannot bind after-created states. it must be noted that a new state. and the matter soon reached the U.newly-admitted state is in every way. operating horizontally (Executive. because to do so would upset the system of checks and balances. 2) States cannot cede any of their authority. U.S. Legislative and Judicial branches) and vertically (state governments and the national government). cannot divest itself of any of its inherent attributes of sovereignty and transfer those attributes to federal government. as a prerequisite to statehood. ergo. in 1845 was the first significant Equal Footing case decided by the U. if the State of [Nevada] today tried to cede its public lands to the national government.

a difference of Constitutional dimension? If. as the U. U. the Original Thirteen own their streambeds and lakebeds. but not in the state sovereignty/dry lands context. 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. more than 200 years after adoption of the Constitution of 1879.S. See Montana v. The Equal Footing Doctrine is cited consistently as authority. i.is a significant incident of state sovereignty. owned the streams and lakebeds. why do those same principles not require holding that title to the public lands pases to the new states at statehood? page 8 of 17 . infra. Supreme Court held that ownership of the land under navigable waters -. State ownership of the beds of navigable streams has been upheld even against claims of Indian nations based on U. some opponents of state ownership of the public lands. the Supreme Court has rebuffed national government claims that it. 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. In Pollard and Utah Division of State Lands. Oddly enough. 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. therefore so do the after-admitted states. Consequently..S. infra. the principles of Equal Footing and state sovereignty require holding that title to the streambeds and lakebeds automatically passes to new states at statehood.Indian treaties.. The U. Supreme Court invariably has declared. not the state. primarily federal bureaucrats and certain selfstyled environmental groups.streams and lakes -. It is very hard to see how Equal Footing can protect and further state sovereignty over submerged lands . and other cases ancient and recent.as the high court says it does .S.S.Confederation for war debt retirement by the state of Georgia.e.if it does not also protect and further state sovereignty over dry lands. recently have attempted to distinguish between the submerged land cases and the dry public lands. The doctrine has been argued repeatedly and successfully in navigable water cases.

there would be no reason for Congress to extort such a promise of cession from the inhabitants of a territory seeking statehood. to coerce public lands out of prospective states as a condition of admission to statehood. 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. The doctrine of Equal Footing is grossly offended by such federal extortion. Coyle's broad language appears to apply to all Equal Footing sovereignty. Were that not so. the case contains no language limiting its holding to political sovereignty. No Supreme Court case has so held. its context is the lack of federal authority. and the opponents of state ownership simply hope to discourage the Western states from prosecuting an appropriate test case to the High Court. voluntarily ceded some of their territory to the Confederation which passed those lands on to the new republic for the specific.What real difference is there? The answer appears to be that there is no real difference. of the Constitution. supported in 1992 by New York v. Some of the Original Thirteen. as was extorted from Nevada and most of the other Western states. page 9 of 17 . limited purpose of retiring the Revolutionary War debt. an obligation of the Confederation assigned by the Constitution to the new Republic. The Original Thirteen held title to their public lands. while independent nation-states. The opponents of state ownership attempt to discern a difference in order to support their position. Coyle is not a public lands ownership case as such. but the "difference" defies any rational analysis. United States. But Coyle. Those voluntary acts do not provide authority for the federal government to extort. both dry and submerged. stands foursquare for the principle that such extortion of the future state is a violation of the Equal Footing Doctrine. when they relinquished their nationstate status and became states within the federal Republic. to extract any cession of state rights from the territorial convention which would be binding on the state after its admission to the Union. because of Equal Footing.

anxious to become a state. Supreme Court just two years ago in New York.and since it has been supported resoundingly by the 1987 Utah and the 1992 New York cases. Federal occupation and control of those lands since that page 10 of 17 . New York New York simply Constitution. the Act required the Territory to cede to the United States.Likewise. Today Coyle.S. The cession never was included in the Nevada Constitution. Coyle languished. Similar cessions were extorted by Congress from other Western Territories. even of sovereignty" to v.S. per Coyle. The Coyle decision was handed down only months prior to the admission to statehood in 1912 of Arizona and New Mexico territories. When Congress in 1864 passed the Enabling Act authorizing the Territory of Nevada to hold a convention to draft a state constitution. without ever addressing the issue. the last of the adjacent 48 states to be created. The Territory. that the federal government owns the public lands. There is no real doubt. 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. cited approvingly by the U. unless overruled in a century and a half of Equal Footing jurisprudence -. as a condition of Admission to statehood. and until the present. And cessions granted after Statehood are invalid if they violate the state sovereignty [rinciples enunciated in New York. declares that a state cannot under the voluntarily. 1864]. is not a public lands ownership case. Unless ratified during statehood. Coyle. 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. passed such a Territorial ordinance. U. During that period. 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. all claim to the public lands within the territory. courts have assumed. those grants of cession by the precedent territories are invalid. 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. their Enabling Acts required cession as a condition of Statehood. transfer any of its "incidents the federal government. Consequently.

. U. The Supreme Court in 1992 said: "State soverignty is not just an end in itself. Cases from Oklahoma. others are postCoyle cases which appear to depend on the earlier Nevada case law as precedent without consideration of the Coyle holding. 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. come to mind. a long line of Nevada state cases which assume -. Unless cases consider the rule of Coyle. Supreme Court holdings in Coyle. "Just as the separation and independence of the page 11 of 17 . V. In any trust of this type. federalism secures to citizens the liberties that derive from the difffusion of sovereign power. this is a very real and cogent issue in the 1990's. the actual owner.THE LIMITS OF STATE SOVEREIGNTY. those cases simply are wrongly decided and should be ignored. That issue is not some ancient.S. Supreme Court decision in Coyle. 'Rather. The underlying issue involved in the Equal Footing Doctrine is the limits of state sovereignty. Some of those cases pre-date the 1911 U. discarded theory that is gone with the wind and dead since the Civil War. the Trustee has the right and obligation to remove and replace any manager acting contra to the interests of the beneficiaries. some of them quite recent. New York and the courts of other Equal Footing cases are the paramount authority.S.generally without examination of the issue -that the ordinance of cession adopted by the Territorial Convention is binding on Nevada. The U. {Ed.} There is.S. and demonstrate how Coyle and New York do not apply to a particular set of facts. Such cases are inherently invalid as authority for the federal government's claim to own the public lands of the West. On the contrary. not state case law. of course.. The same incorrect assumption that territorial cessions are binding on the after-admitted states has been made by other Western states. THE UNDERLYING ISSUE -. or at most a trusteeship for the benefit of [Nevada].date has been wrongful. in the light of New York v. Utah and Idaho.' " (Citation omitted).

and that lone attack was successful. An analogy to the separation of powers among the Branches of the Federal Government clarifies this point. the departure from the constitutional plan cannot be ratified by the 'consent' of state officials..S.. The Constitution's division of power among the three Branches is violated where one branch invades the territory of another. whether that unit is the Executive Branch or the States. These acts. Chadha. The constitutional authority of Congress cannot be expanded by the 'consent' of the governmental unit whose domain is thereby narrowed... infra. a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." New York v. whether or not the encroached upon Branch approves of the encroachment. despite Presidents' approval of hundreds of statutes containing a legislative veto provision. State after state [had to] accept their terms of surrendering the public land or face the probability of remaining in territorial status indefinitely." "State officials .coordinate branches of the Federal Government serves to prevent the accumulation of power in any one branch. Apparently. only Oklahoma dared to attack its ordinance and act of admission after attaining statehood. that consent is void. In short. "Where Congress exceeds it authority relative to the States.S. (citation omitted) we held that the legislative veto violated the constituional requirement that legislation be presented to the President. Over and over again the opponents of applying the Equal Footing Doctrine to land point to the various Congressional Acts. infra. page 12 of 17 ." New York v. cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution. ordinances and case law are akin to the acceptance of a legislative veto by many presidents for many years. U. The Supreme Court said: "In INS v." (Citation omitted). the territorial ordinances of admission. and the case law automatically accepting all of them without their validity having been tested therein. therefore. U. even where Congress is successful in bribing or coercing a state or another branch of government into consenting toa relinquishment of their respective rights.

During territorial status the federal government has the right to withdraw lands within the territory for proper federal purposes . if the acquisition is soil owned by the state. The lands to which the federal government can hold title are limited strictl by the Constitution -. Once the purpose is determined to be proper. The Property Clause does indeed totally empower the United States with respect to federal lands. the state can agree only if the acquisition is for one of the Constitutionally-permitted national purposes. dockyards. post offices. a denial of authority. in the Constitution for the federal government to withdraw territorial lands for other national purposes. Before the federal government can acquire or withdraw any land from a territory or state. infra. PROPERTY CLAUSE APPLIES TO "FEDERAL". etc. in fact. post-offices.forts. the two phrases refer to two different types of real estate. the Property Clause of the United States Constitution grants to the United States as superior sovereign the right to control federal lands. among other reasons. the acquisition or withdrawal must be for a national purpose authorized by the Constitution. federal property. And the Constitution expressly grants the federal government authority over territorial lands while they remain territories. There is no authority. post roads. 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. dockyard. But "federal lands" does not equate necessarily to "public lands".SECTION THREE VI. arsenals. And. 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. arsenals.forts. In fact. the Constitution requires that the state must agree to the acquisition. A two -pronged test applies. etc. . NOT "PUBLIC" LANDS. Once a state becomes a state. according to New York. SUPREMACY CLAUSE APPLIES ONLY TO AREAS WHERE FEDERAL GOVERNMENT IS GRANTED AUTHORITY BY THE CONSTITUTION.

It should be noted that the Equal Footing . the property in question must be determined to be federal property. San Francisco's claim was not binding under the previous sovereign. infra. Where those cases are cited as authority jurisdiction. Gratiot. If the question of title is not raised. dealt with lands ceded by Pennsylvania and Virginia to the Confederation for war debt retirement. New Mexico. Such cases include: United States v. Equal Footing was not even argued in this case. Kleppe does not declare that the public domain is federal property. Kleppe often is cited for the proposition that the public lands are federal property. it simply does not address that issue. Consequently. (Illinois could not claim title to the public lands because they had been deeded away previously by Pennsylvania and Virginia. McDowell. but the Property Clause of the Constitution only grants authority to the federal government to deal in plenary fashion with federal property. Grissar v. without which there can be no jurisdiction]. but whether the prase "dispose of" included the ability to lease as well as to sell. which do not address the threshold issues of title or jurisdiction [and venue. Though perhaps it should have been. they are improperly cited. infra. Many other cases are often improperly cited for the proposition that the public lands are federal property. 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. The issue in Gratiot was not ownership at all. the courts will not rule on title. and could not overcome the national government's withdrawal of land for a fort during territorial days. and those cases on examination generally do not address the question of ownership or Equal Footing.) Title was not even an issue in Gratiot. for title or One of the classic examples of a case often cited incorrectly is Kleppe v. All Kleppe says is that state law does not govern on federal property when state and federal laws conflict. that the federal government may act as it pleases with respect to federal property. Before the Property Clause or the Supremacy clause comes into play.It may be akin to an oxymoron. The case doesn't say that at all. there are numerous cases which hold that the federal government is supreme within its areas of supremacy. infra.

and that was a clear majority of the court with only two dissenting votes. Coyle at 580. Justice Brown merely argued the equitable doctrine of laches. (Otherwise. The U. there are several cogent problems with this view. Baker. 45 L.Doctrine does not take issue with federal title to forts. Stearns v. at 178. state ownership was decided (or asked). infra. infra. However. infra. the opinion wherein that dicta appears is not a majority opinion. . infra. post offices.) The case has absolutely nothing to do with the Equal Footing Doctrine. thge doctrine of laches has never been viewed by the U. and many properties were confiscated fo non-payment. At first blush Stearns seems to be of some help to opponents of applicability of the Equal Footing Doctrine. The case was split 4-4 with Justice Brown breaking the tie. Minnesota. Stearns. Supreme Court as a doctrine which can cost a state or a person rights guaranteed by the Constitution. Butte City Water Co. Anderson. 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. Title to the public lands was not at issue. No question of federal v. Section 8 property when that property is properly acquired during territorial status. in obiter dicta. Any Confederate soldier who showed up to pay his tax was arrested for treason so few appeared to pay. 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. v. It is not disputed that the federal government could have withdrawn property for the enumerated federal purposes during Territorial days. Supreme Court upheld the confiscations. First and foremost. In effect. but only as a consequence of the legitimacy or illegitimacy of the taxes.S.S. in [Nevada] and most of the West the fact is that the United States did not make such withdrawals. Van Brocklin v. Both sides assumed the full validity and applicability of the federal acts and merely argued over the meaning of those acts.Ed.) The second problem with the apparent dicta of Stearns is that it was clearly overruled by the Coyle case 11 years later. and other such enumerated Article 1. 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. the Van Brocklin issue was the legitimacy of the taxes rather than title to land (title was involved.

Therefore. 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.. . In Stearns the legitimacy of the state's grant of the public lands to the federal government not challenged. In fact it is hard to distinguish Stearns from Kleppe in this regard. 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. v. the Pollard arguments would apply to Stearns.S. the parties assumed federal ownership and did not dispute the matter. New Yprk v. The line of Nevada cases which assumes.S. Whatever solace Light might provide to those who oppose state ownership of the public lands is vitiated by the fact that Light predates Coyle. and if title to the public land is an incident of that sovereignty as the Pollard line of cases implies. that the public lands are the property of the federal government. and therefore is subject to Coyle's declaration of Constitutional Law. infra. at least part of Minnesota was subject to the earlier noted grants of land by the Original Thirteen to the Confederation. Utah Power and Light Co. indicates that if the grant had been challenged.. Fifth.. but does not consider Coyle's Equal Footing rationale because that was not presented to the court for consideration.S.S. U. Light v. U. U. Fourth. are simply wrongly decided in the light of Coyle and New York v. and if a state cannot bargain away its sovereignty as Coyle and New York suggest. infra. U. U. Nevada's first case was decided without the benefit of Coyle's jurisprudence.S. Again. infra. 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.Third. and Nevada courts have followed Nevada precedent without any re-examination of the Constitutional issue. The case is subsequent to Coyle. without analysis. then the Stearns plurality's assertion of title in the federal government would never have been made.. infra.

infra. Quite the contrary. The . or form stand for the legitimacy of the federal government's attempts to seize the public lands by force of statehood enabling acts. Clearly. Arizona v. (citaions omitted) "No such question is presented here. California. 733. which might be upheld as legislation within the sphere of Congress. commerce among the states. 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. shape. 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. See page 4 of Letter (opinion) to Assemblyman Roy Neighbors dated November 5. with emphasis added." However. then. and so on) must derive from some other source apart from the enabling act legislation. or regulations touching the sole care and disposition of the public lands or reservations therein. Indian tribes. 55 L. The full quote. as to those other asserted powers noted by the Coyle court. but solely because the power of Congress extended to the subject. Such sources do exist. 1993. concerning federal authority over the public lands and A. or with Indian tribes situated within the limits of such state. discourse with Indian tribes and disposition of public lands.Ed. Coyle states that any such power (over public lands. at 860-861. also often is misapplied.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. 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. it would appear that he is referring to some language taken out of context. however. No other source exists for the federal government's claim of title to the public land in Nevada and other Western states. Coyle does not in any way. independent of the unconstitutional enabling act legislation. such as regulation of interstate commerce.B. nor by reason of its acceptance of such enactment as aterm of admission. But in every such case such legislation would derive its force not from any agreement or vcompact with the proposed new state." Coyle at 574.

not federal.596). Rather. in certain lands where Lander wishes to construct a recreational resoervoir. Lander County. 3. 4. SECTION FOUR NRS 321. cases that deal with federal power over federal land. sec. is prepared to fund and prosecute the fight. 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.Supreme Court said "Pollard. This brief does ot in any way contest the federal government's power and authority to regulate its property. If Lander is successful in obtaining such a quit-claim. Lander seeks a quit-claim from the State of Nevada's interests. And Nevada incurs no liability thereby. 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. Nevada presently is not defending its claim to ownership of the public lands (see. Therefore. of the Constitution. would settle once and for all the question of ownership of the public lands in Nevada and the West." That is beyond dispute. if carried to the United States Supreme Court. simply are irrelevant.605 et seq. Nevada would not be losing anything of current value if it approves such a quitclaim. since the Attorney General probably could obtain original jurisdiction in the U." Lander County is not asking Nevada to countenance a purchase of public land pursuant to those statutes.S. a tactic unavailable to Lander County. and therefore cases like Arizona and Kleppe. This brief asserts that public land is state property. Supreme Court.. . if the Attorney General does not feel comfortable in mounting such a legal challenge. Such a challenge. However. supra. And the state would benefit greatly if Lander County's legal tactics are successful. declares the intent of the Nevada Legislature "to provide an orderly procedure for the processing of application by the state. whatever that may be determined to be. assisted by several other rural counties. The dispute is purely a matter of title. it is prepared to challenge the federal government's claim to ownership and dominion over the subject real property. It certainly would be preferrable for the Attorney General of Nevada to take on this battle. NRS 321..

. in preparing this brief. Schaeffer.ZSM . Schaeffer's research and writing has bee extensively appreciated. a political subdivision of the State of Nevada. By Zane Stanley Miles. 1994 LANDER COUNTY.Respectfully submitted July 12. District Attorney. NOTE Lander County gratefully recognizes the assistance of William E. Eureka County District Attorney. Mr.

Ct.Ct. 373 U. 1468. 18 L.Ed.Ct... 61 L. . 5. Anderson.S.Ct. 12. 546.. 193.. 3 Howard (44 U. 2318. 112 S. 8. 863 (1868) 11 Butte City Water Co. 13. 151. U. 49 L. U. 559.S. v. 570 (1910) 13 Utah Power and Light Co.. 505 U. 12.2d 493. 13. 119. U. 426 U. 5.14 Utah Division of State Lands v. 450 U. Minnesota.Ed. 853 (1911) 4.Ed.S.Ed. Gratiot. (omitted) 9 Kleppe v. 544. 10 L. 117 U. U. 67 L.S. 44 L.Ed. 29 L. 55 L. 7.S. Baker. U. 12.) 212. 39 U. 7. 10. 101 S.Ed.S. 482 U.2d 542 (1963) 14 .S. 73 U. 55 L.S. 196 U. 96 L.S. 845 (1886) Stearns v. 480.Ed. McDowell. California. 13 Light v. Hagan. 13.Ed. AUTHORITIES and CITES CITATION SHOWN AT New York v.Ed. 12. 409 (1905) 11 Van Brocklin v.2d 34.. 526.TABLE OF POINTS. 565 (1845) 4. 45 L. (6 Wall) 363.S. 1245 (1981) 5 INS v. 174 12 12. 83 S. 506. 14 Montana v.S. 96 S. Smith aka Coyle v. 688. Pollard's Lessee v. 792 (1916) 13 Arizona v.S.Ed. 4. 9.Ed.S. 5. 14 United States v. 573 (1843) 11 Grissar v.S. v.S.S. 11 L. 8.2d 120. U. 5. 220 U. New Mexico. 31 S. 2285 (1976) 11.Ct. 529.Ct.Ed.2d 162 (1987) 4. 221 U. 120 L.S. 31 S. Chadha.Ct.S.Ed. Oklahoma. 8 Coyle v. 107 S. 10 L.Ed.

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