Las Vegas Sun

March 28, 2024

Where I Stand: Nye ruling sends messages

THE RULING OF U.S. District Judge Lloyd D. George in U.S. vs. Nye County should send several messages to the fringe groups overstepping legal limits when claiming control over public lands. The decision also should be read carefully by state legislators who pass laws that are clearly unconstitutional. In Nevada, the governor and bureaucrats with the responsibility to execute the laws should now return some of these laws to the 1997 Legislature in hopes it will clean up some of the mess that has been produced in past sessions.

Good examples of past legislative disregard for legal precedent and/or common sense were laws passed in 1979. One of them declared that the state of Nevada has a legal claim to the public land retained by the federal government within the state's borders. The Legislature cited its reasons based on the right of all states to enter the Union on an equal footing with the original states. They wrote into law what they believed were appropriate "equal footing" decisions from Alabama and Texas to reinforce their erroneous thinking. They even went back to the 18th century when writing:

"(c) The Northwest Ordinance of 1787, adopted into the Constitution of the United States by the reference of Article VI to prior engagements of the Confederation, first proclaimed the 'equal footing' doctrine, and the Treaty of Guadalupe Hidalgo, by which the territory including Nevada was acquired from Mexico and which is 'the supreme law of the land' by virtue of Article VI, affirms it expressly as to the new states to be organized therein."

Shortly thereafter, then-Nevada Attorney General Richard Bryan wisely refused to defend the rationalization of this law in court when the U.S. Department of Interior wanted to test it. Bryan, a former state legislator, recognized the legislative meddling for what it was.

Also, some legislators came to the Nevada State Press Association meeting in Elko in 1979 to tell how the land could be acquired in the courts. How well I remember three of them -- not one of whom was an attorney -- explaining how the "equal footing" doctrine would be applied and all the land would have to be given to Nevada.

They contended that Nevada had been treated unfairly by Congress when brought into the Union in 1864 and had to "disclaim all right and title to the unappropriated public lands lying within said territory." In other words, Nevada had not become a state under conditions given "equal footing" with other states.

That line of reasoning conveniently overlooked subsequent acts of Congress in 1866 and 1880 that made more and better land available to the residents of the Silver State.

Even more importantly, they did not take time to research constitutional law or Supreme Court decisions on the equal footing doctrine. The clearest decision was written in 1950 by Justice Douglas in United States vs. Texas:

"The 'equal footing' clause has long been held to refer to political rights and to sovereignty. ... It does not, of course, include economic stature or standing. There has never been equality among the states in that sense. Some states, when they entered the Union, had within their boundaries tracts of land belonging to the federal government; others were sovereigns of their soil. Some had special agreements with the federal government governing property within their borders. ... Area, location, geology and latitude have created great diversity in the economic aspects of the several states. The requirement of equal footing was designed not to wipe out those diversities, but to create parity as respects political standing and sovereignty."

Then this year, a brash Nye County Commission had to learn its lesson about the legal meaning of the equal footing doctrine. In the process, Judge George had to take a look at the equal footing doctrine the state of Nevada had declared by law in 1979. After picking it apart, he moved on and ripped two other sections of the same law when writing:

"Another legal theory upon which the Nevada Legislature asserts ownership of public lands in its findings is that the federal government lacks either an express or necessarily implied power to retain public lands. ... This theory was rejected by the Supreme Court, which has held that the Property Clause, Art IV. 3 of the Constitution, vests such power in the federal government. Elucidating upon the Property Clause, the court has noted, '(t)he term territory, as here used, is merely descriptive of one kind of property; and is equivalent to the word lands. And Congress has the same power over it as over any other property belonging to the United States; and this power is vested in Congress without limitation. ...' The court then declined the invitation to construe the phrase 'dispose of,' to 'vest in Congress the power only to sell and not to lease such lands.' Rather, the court continued, '(t)he disposal must be left to the discretion of Congress.'

"More recently, the Supreme Court reaffirmed the broad power of the federal government to retain and regulate public lands in Kleppe vs. New Mexico. In that matter, the court stated that 'while the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved, we have repeatedly observed that "(t)he power over the public land thus entrusted to Congress is without limitations." ...' Given this interpretation, the court must conclude that such a broad power to regulate land owned by the United States necessarily includes the power to own the regulated public lands."

If Nye County and the state of Nevada want to challenge the wisdom of Judge George's ruling, they can receive additional instructions on the laws of the land from appeal courts. Rather than appeal George's rulings, I'd suggest that Nye County commissioners wise up and that state bureaucrats attempt to get the 1997 Legislature to clean up some of the mess their predecessors have created in the Nevada Revised Statutes.

archive