MINUTES OF MEETING
ASSEMBLY COMMITTEE ON NATURAL RESOURCES, AGRICULTURE AND MINING
Sixty-seventh Session
June 24, 1993
The Assembly Committee on Natural Resources, Agriculture and Mining was called to order by Chairman Vivian L. Freeman at 2:30 p.m., June 24, 1993, in Room 321 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mrs. Vivian L. Freeman, Chairman
Mr. John B. Regan, Vice Chairman
Mr. Douglas A. Bache
Ms. Marcia de Braga
Mr. Peter G. Ernaut
Mr. James A. Gibbons
Mr. Roy Neighbors
Mr. Robert M. Sader
Mr. Michael A. Schneider
COMMITTEE MEMBERS ABSENT:
Mr. John C. Carpenter
Ms. Stephanie Smith
STAFF MEMBERS PRESENT:
Mr. Fred Welden, Chief Deputy Research Director
Mr. Lorne J. Malkiewich, Legislative Counsel
GUEST LEGISLATORS PRESENT:
None
Mrs. Freeman called the committee to order and said the bill under discussion would be A.B. 733. She said there had been concern over the constitutionality of the measure and Mr. Lorne Malkiewich, Legislative Counsel, would address the issue.
ASSEMBLY BILL 733:
Provides additional means to enforce Nevada's claim to public lands.
Mr. Lorne Malkiewich, Legislative Counsel, addressed the proposed amendment to A.B. 733, Section 2 and Section 3 of page 1. He said he would discuss the basis of legislation along these lines and the reason for his concerns. Mr. Malkiewich read a sentence, "The only provision in the constitution which permits jurisdiction to be vested in the United States is found in Article I, Section 8, Clause 17, which provides the mechanism for a voluntary session of jurisdiction from a state of the United States." He felt this was, "the `crux' of the issue and where the office of Legislative Counsel has a disagreement with the proponents of this sort of legislation. There were cases cited which refer to this limitation upon the federal governments authority over public lands, this has been raised in Federal District Court and the Ninth Circuit Court in defense of states actions concerning the high level radio active waste repository and for the most parts the courts have gone in a different direction. There is another clause of the constitution, Article 4, Section 3, Clause 2, which is the property clause, which gives the federal government, says that Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." The case Mr. Malkiewich was reading from was Cleppe vs. New Mexico, a 1976 U.S. Supreme Court Case. He said, "Some of the quotes would make you understand our position is that limitation, Article I, Section 8, Clause 17, is not the final word on the authority of the Federal Government over Public Lands. While the furthest reaches of the power granted by the property clause have not been definitively resolved, we have repeatedly observed, `The power over the public land thus entrusted to Congress is without limitations.' There is reference to the Article I, Section 8, Clause 17, says while Congress can require exclusive or partial jurisdiction within a state by the states consent or session the presence or absence of such jurisdiction has nothing to do with Congress's power under the property clause. Absent consent or session, the state undoubtedly retains jurisdiction over federal lands within its territory while Congress equally surely retains the power to enact legislation respecting those lands pursuant to the property clause. When Congress so acts the federal legislation necessarily overrides conflicting state laws under the supremacy clause." Mr. Malkiewich said the quotes would be found in a number of district court and ninth circuit court cases concerning the high level radio active waste repository. "This is why federal government has authority in this area, it is not something the state needs to see jurisdiction, the federal government has that authority. I think this basic difference is the proponents of this measure believe this line of U.S. Supreme cases is wrong and contrary to the intent of the framers, the intent was the federal governments authority be far more limited than the United States Supreme Court is interpreting it. However, what I am telling you is the cases we have seen and reviewed give a different or reach a different result. The proposed amendments I have several concerns with. The first one is just the general notion of state statutes regulating the conduct of federal officers. We have federal laws that say if a federal officer exceeds his authority he can be sued or prosecuted. We have state laws that say if a state officer exceeds his jurisdiction he can be sued or prosecuted, but I know of no case in which a state law has indicated that a federal officer would be liable. I have concerns with the supremacy clause, concerns with state law dictating the conduct of federal officers. A lot of the research you see and hear relates to prosecution or suing a federal officer for conduct by a state court under state law and generally what these refer to is just applying the generic law of the state, generic criminal law, the generic civil law, to someone who happens to be a federal officer, and I agree completely with that, there you do have concurrent jurisdiction, the state has a great deal of authority over federal officers, particularly if they act outside the scope of their authority they will loose what federal immunity they have when they do that and open themselves up. That is a separate issue, what were talking about here is a bill that singles out federal officers for regulation, that raises serious supremacy clause questions to me. Creating a crime raises some other concerns. The language here is outside the scope of the specific authority lawfully delegated. Lawfully delegated, I don't see how you could read other than to say if the authority is not lawfully delegated then that authority does not protect the federal officer. I also believe you have due process concerns as to whether a person would now have sufficient knowledge of exactly what is prohibited and what isn't prohibited to have a prosecution under this statute. Due process requires that you have some sort of notice of what kind of conduct is prohibited by the statute. That is the very reason our telemarketing statute was recently struck for failure to specify particularly the conduct that is prescribed. Specifically, authority lawfully delegated gives me a big concern especially of what this means, as if the authority was unlawfully delegated, for example if the federal government didn't in fact have control over public lands and everything that the Forest Service or Bureau of Land Management does on public lands is the result of an unlawful delegation. The consequence would be that every act taken with the respect to public lands by these officers would be a gross misdemeanor. I just don't think the courts are going to uphold that. Even if this is intended to be more limited, if it's intended only to apply to cases where someone clearly exceeds their authority, I still have the concerns of exactly what is the prescribed conduct and whether the state can in fact have a criminal statute that applies solely to the activities of federal officers. When I read this my initial reaction is this is appropriate subject for federal law, not for state law. The civil remedy has similar but separate questions. There is a federal tort claims act, federal legislation on suing federal officials. If you file a claim against a federal officer under 28 U.S.C., 1442, that case gets removed to federal court and is then determined whether the officer acted within the scope of his authority. If he did he is immune from liability; if not then you can sue under the federal tort claims act, you can commence your action. This federal law, I think is going to supersede any state remedies against actions by federal officials. The other concern I have to the civil remedy is the scope of the federal tort claim act. First of all the language of it immunizes conduct pursuant to a statute or regulation whether that statute or regulation was lawfully adopted. That is common of state and federal tort claim statutes. The issue is not if this amendment proposed is whether, after the fact, it is determined someone did happen to exceed their authority, the issue is whether the person believed they were acting within the scope of their lawful authority, and if so, they are generally immune. If it turns out the act under which you are, the statute or regulation under which you are taking action was illegal, you still believed you were acting lawfully, the federal or state governmental immunity would apply. Case law, if you could reasonably have thought it was consistent with what you were suppose to be doing. This by the way is the result of not a great deal of, first some of these issues the general property clause things is issues we have looked at in the past in connection with the high level radio active dump, in connection with the sagebrush rebellion, connection with the public lands committee, these are issues we have looked at. These specific issues, as to this law, is something we've just looked at briefly, I can't say that our research on this is exhaustive, but I would say I am very concerned that both of these provisions would either be preempted by federal law or as applied would not be able to be enforced. I have discussed the issue with a representative of the Attorney General's office and they concur. I would be glad to answer any questions you have."
Mrs. Freeman asked for questions from the committee members.
Mr. Schneider asked if the committee would pass A.B. 733, what would be Nevada's exposure in this. Mr. Malkiewich said he did not think there was a terribly lot of exposure, "this is not like some of these cases where if you adopt an unconstitutional statute the federal government is going to pull all of its funds out of your state or your going to have every state officer sued within a day and end up spending your time in court. One of two things will happen, either someone will try and enforce this, either a prosecutor or a citizen enforcing the civil remedy against a federal agent and it will be taken to court and litigated. In either of those cases if the statute is upheld, remember this opinion, it is not the law because I say so, it is our opinion, if the court upholds the law, then there is no problem of course, if the court finds the law unconstitutional, as I believe it would, then you have just had the expense of that suit. It may be more costly if the federal government files suit against the state feeling this is going to deter or in someway cause their officers concern in carrying out the federal law. They may bring the action in which case the Attorney General's office would need to defend it and the cost of the defense of the suit. I am unaware of any other consequences that would result from passage of the bill. "Mr. Schneider said Mr. Malkiewich mentioned the Attorney General's office concurred with him. Mr. Malkiewich said yes, he had spoken to the Deputy Attorney General in the Attorney General's office who he had discussed similar issues in connection with public lands, and said he realized he was giving him all of three hours, but asked him to look the bill over and he looked into it. This was the initial reaction and initial response looking at the bill as we both had the same concerns."
Mr. Neighbors said to Mr. Malkiewich he was very disappointed to hear the opinion and disappointed even after the amendment being so late getting this information. "Like you say it is your opinion, you indicated to me you would put that in writing or may I ask is everything taped here," said Mr. Neighbors. It was being taped, the chairman said. Mr. Malkiewich said if Mr. Neighbors would like he would do a written opinion for him, looking at the issue in more depth. Mr. Neighbors said he would appreciate the opinion. Mr. Neighbors said, I apologize to the committee and all those folks all through Nevada that certainly took an interest in this bill, thank you."
Mrs. Freeman said it was not the practice of this body to take a vote on a bill that was unconstitutional. "Mr. Neighbors, it is your bill, what would you like us to do, indefinitely postpone?" asked Mrs. Freeman. Mr. Neighbors said he did not like the word indefinitely postpone and would prefer just no action. Mrs. Freeman said there would be no action taken on A.B. 733, and the hearing was closed.
An opinion by the Office of the Attorney General was included in the minutes as Exhibit B.
There being no further business to come before committee, the meeting was adjourned at 3:00 p.m.
RESPECTFULLY SUBMITTED:
PAT MENATH
Committee Secretary
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Assembly Committee on Natural Resources, Agriculture and Mining
June 24, 1993
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