Assembly Bill No. 391–Committee on Constitutional Amendments

 

March 16, 2001

____________

 

Referred to Committee on Natural Resources, Agriculture, and Mining

 

SUMMARY—Provides additional means to enforce Nevada’s claim to public lands. (BDR 26‑1455)

 

FISCAL NOTE:            Effect on Local Government: Yes.

                                    Effect on the State: Yes.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to public lands; providing a civil remedy and a criminal penalty for certain acts; authorizing a board of county commissioners to adopt certain ordinances relating to public lands located within the county; authorizing a district attorney to initiate or defend an action relating to public lands under certain circumstances; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. Chapter 321 of NRS is hereby amended by adding thereto

1-2  the provisions set forth as sections 2 and 3 of this act.

1-3    Sec. 2.  A person who performs an act with respect to the

1-4  management or disposal of any of the public lands in this state, other

1-5  than as an agent of this state, is guilty of a gross misdemeanor.

1-6    Sec. 3.  A person aggrieved by a violation of section 2 of this act may

1-7  commence a civil action against the violator to recover damages suffered

1-8  as a proximate result of the violation and is entitled to recover $20,000 or

1-9  treble the amount of his actual damages, whichever is greater, plus his

1-10  costs and reasonable attorney’s fees in the action.

1-11    Sec. 4.  NRS 321.596 is hereby amended to read as follows:

1-12    321.596  The legislature finds that:

1-13    1.  The State of Nevada has a strong moral claim upon the public land

1-14  retained by the Federal Government within Nevada’s borders because:

1-15    (a) On October 31, 1864, the Territory of Nevada was admitted to

1-16  statehood on the condition that it forever disclaim all right and title to

1-17  unappropriated public land within its boundaries;

1-18    (b) From 1850 to 1894, newly admitted states received 2 sections of

1-19  each township for the benefit of common schools, which in Nevada

1-20  amounted to 3.9 million acres;

2-1    (c) In 1880 Nevada agreed to exchange its 3.9-million-acre school grant

2-2  for 2 million acres of its own selection from public land in Nevada held by

2-3  the Federal Government;

2-4    (d) At the time the exchange was deemed necessary because of an

2-5  immediate need for public school revenues and because the majority of the

2-6  original federal land grant for common schools remained unsurveyed and

2-7  unsold;

2-8    (e) Unlike certain other states, such as New Mexico, Nevada received

2-9  no land grants from the Federal Government when Nevada was a territory;

2-10    (f) Nevada received no land grants for insane asylums, schools of

2-11  mines, schools for the blind and deaf and dumb, normal schools, miners’

2-12  hospitals or a governor’s residence as did states such as New Mexico; and

2-13    (g) Nevada thus received the least amount of land, 2,572,478 acres, and

2-14  the smallest percentage of its total area, 3.9 percent, of the land grant states

2-15  in the Far West admitted after 1864, while states of comparable location

2-16  and soil, namely Arizona, New Mexico and Utah, received approximately

2-17  11 percent of their total area in federal land grants.

2-18    2.  The State of Nevada has a legal claim to the public land retained by

2-19  the Federal Government within Nevada’s borders because:

2-20    (a) In the case of the State of Alabama, a renunciation of any claim to

2-21  unappropriated lands similar to that contained in the ordinance adopted by

2-22  the Nevada constitutional convention was held by the Supreme Court of

2-23  the United States to be “void and inoperative” because it denied to

2-24  Alabama “an equal footing with the original states” in Pollard v. Hagan, 44

2-25  U.S. (3 How.) 212 (1845);

2-26    (b) In Coyle v. Smith, 221 U.S. 559 (1911), the Supreme Court of the

2-27  United States expressly affirmed the “equal footing” doctrine as

2-28  enunciated in Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845), holding

2-29  that to ensure equality among the states, the legislature of the State of

2-30  Oklahoma had the power to locate, change and appropriate money for its

2-31  own seat of government and that the Congress of the United States could

2-32  not, through the Enabling Act of June 16, 1906, ch. 3335, 34 Stat. 267,

2-33  require the State of Oklahoma to erect its seat of government in a

2-34  location designated by Congress;

2-35    (c) The State of Texas, when admitted to the Union in 1845, retained

2-36  ownership of all unappropriated land within its borders, setting a further

2-37  precedent which inured to the benefit of all states admitted later “on an

2-38  equal footing”; and

2-39    [(c)] (d) The Northwest Ordinance of 1787, adopted into the

2-40  Constitution of the United States by the reference of Article VI to prior

2-41  engagements of the Confederation, first proclaimed the “equal footing”

2-42  doctrine, and the Treaty of Guadalupe Hidalgo, by which the territory

2-43  including Nevada was acquired from Mexico and which is “the supreme

2-44  law of the land” by virtue of Article VI, affirms it expressly as to the new

2-45  states to be organized therein.

2-46    3.  The exercise of broader control by the State of Nevada over the

2-47  public lands within its borders would be of great public benefit because:

2-48    (a) Federal holdings in the State of Nevada constitute 86.7 percent of

2-49  the area of the state, and in Esmeralda, Lincoln, Mineral, Nye and White

3-1  Pine counties the Federal Government controls from 97 to 99 percent of the

3-2  land;

3-3    (b) Federal jurisdiction over the public domain is shared among 17

3-4  federal agencies or departments which adds to problems of proper

3-5  management of land and disrupts the normal relationship between a state,

3-6  its residents and its property;

3-7    (c) None of the [federal] federally administered lands in Nevada are

3-8  taxable and Federal Government activities are extensive and create a tax

3-9  burden for the private property owners of Nevada who must meet the needs

3-10  of children of Federal Government employees, as well as provide other

3-11  public services;

3-12    (d) Under general land laws only 2.1 percent of [federal] federally

3-13  administered lands in Nevada have moved from federal control to private

3-14  ownership;

3-15    (e) Federal administration of the retained public lands, which are vital to

3-16  the livestock and mining industries of the state and essential to meet the

3-17  recreational and other various uses of its citizens, has been of uneven

3-18  quality and sometimes arbitrary and capricious; and

3-19    (f) Federal administration of the retained public lands has not been

3-20  consistent with the public interest of the people of Nevada because the

3-21  Federal Government has used those lands for armament and nuclear testing

3-22  thereby rendering many parts of the land unusable and unsuited for other

3-23  uses and endangering the public health and welfare.

3-24    4.  The intent of the framers of the Constitution of the United States

3-25  was to guarantee to each of the states sovereignty over all matters within its

3-26  boundaries except for those powers specifically granted to the United

3-27  States as agent of the states.

3-28    5.  The attempted imposition upon the State of Nevada by the Congress

3-29  of the United States of a requirement in the enabling act that Nevada

3-30  “disclaim all right and title to the unappropriated public lands lying within

3-31  said territory,” as a condition precedent to acceptance of Nevada into the

3-32  Union, was an act beyond the power of the Congress of the United States

3-33  and is thus void.

3-34    6.  The purported right of ownership and control of the public lands

3-35  within the State of Nevada by the United States is without foundation and

3-36  violates the clear intent of the Constitution of the United States.

3-37    7.  The exercise of such dominion and control of the public lands

3-38  within the State of Nevada by the United States works a severe, continuous

3-39  and debilitating hardship upon the people of the State of Nevada.

3-40    8.  The State of Nevada, in enacting NRS 321.596 to 321.599,

3-41  inclusive, and sections 2 and 3 of this act, is acting as a sovereign state to

3-42  enforce within its borders the provisions of the Constitution of the United

3-43  States. In so acting, it is subject only to the original jurisdiction of the

3-44  Supreme Court of the United States.

3-45    Sec. 5.  NRS 321.5963 is hereby amended to read as follows:

3-46    321.5963  As used in NRS 321.596 to 321.599, inclusive, and sections

3-47  2 and 3 of this act, unless the context otherwise requires:

3-48    1.  “Division” means the division of state lands of the state department

3-49  of conservation and natural resources.

4-1    2.  “Public lands” means all lands within the exterior boundaries of the

4-2  State of Nevada , including lands managed or controlled by the Bureau

4-3  of Land Management or the United States Forest Service, except lands:

4-4    (a) To which title is held by any private person or entity;

4-5    (b) To which title is held by the State of Nevada, any of its local

4-6  governments or the University and Community College System of Nevada;

4-7    (c) Which are located within congressionally authorized national parks,

4-8  monuments, national forests or wildlife refuges or which are lands acquired

4-9  by purchase consented to by the legislature;

4-10    (d) Which are lawfully controlled by the United States Department of

4-11  Defense, Department of Energy or Bureau of Reclamation; or

4-12    (e) Which are held in trust for Indian purposes or are Indian

4-13  reservations.

4-14    Sec. 6.  NRS 321.597 is hereby amended to read as follows:

4-15    321.597  1.  The division shall hold the public lands of the state in

4-16  trust for the benefit of the people of the state and shall manage them in an

4-17  orderly and beneficial manner consistent with the public policy declared in

4-18  NRS 321.5977.

4-19    2.  [The] Except as otherwise provided in subsection 4 of NRS

4-20  321.5973, the state land registrar may , with the approval of the board of

4-21  review , adopt regulations necessary to manage the public lands in an

4-22  orderly and beneficial manner and to carry out the provisions of NRS

4-23  321.596 to 321.599, inclusive, and the public trust created in those

4-24  sections.

4-25    3.  Except as otherwise provided in this subsection, the state land

4-26  registrar may contract for or employ such professional and clerical

4-27  personnel as are needed to carry out his functions. Any contract for

4-28  professional services must be approved by the state board of examiners and

4-29  any money necessary to compensate those persons must be approved for

4-30  expenditure by the legislature or the interim finance committee.

4-31    Sec. 7.  NRS 321.5973 is hereby amended to read as follows:

4-32    321.5973  1.  Subject to existing rights[,] and privileges, all public

4-33  lands in Nevada and all minerals not previously appropriated are the

4-34  property of the State of Nevada and subject to its jurisdiction and control.

4-35    2.  Until equivalent measures are enacted by the State of Nevada, the

4-36  rights and privileges of the people of the State of Nevada under the

4-37  [National] Forest Reserve [Transfer Act (16 U.S.C. §§ 471 et seq.),] Acts,

4-38  16 U.S.C. §§ 471a et seq., the General Mining Laws , [(]30 U.S.C. §§ 21

4-39  et seq.[), the Homestead Act (43 U.S.C. §§ 161 et seq.),] , the Stock-

4-40  Raising Homestead Act, 43 U.S.C. §§ 299 and 301, the Taylor Grazing

4-41  Act , [(]43 U.S.C. §§ 315 et seq. , [),] the Desert Land Act , [(]43 U.S.C.

4-42  §§ 321 et seq. , [),] the Carey Act , [(] 43 U.S.C. §§ 641 et seq. [)] and the

4-43  Public Rangelands Improvement Act [(] of 1978, 43 U.S.C. §§ 1901 et seq.

4-44  , [)] and all rights of way and easements for public utilities must be

4-45  preserved under administration by the state.

4-46    3.  Public lands in Nevada which have been administered by the United

4-47  States under international treaties or interstate compacts must continue to

4-48  be administered by the state in conformance with those treaties or

4-49  compacts.

5-1    4.  The board of county commissioners of each county may adopt

5-2  such ordinances as are necessary to carry out the provisions of NRS

5-3  321.596 to 321.599, inclusive, concerning the public lands within the

5-4  boundaries of the county.

5-5    Sec. 8.  NRS 321.599 is hereby amended to read as follows:

5-6    321.599  The attorney general may initiate an action or defend [any]

5-7  an action commenced in any court to carry out or enforce the provisions of

5-8  NRS 321.596 to 321.599, inclusive, or seek [any] appropriate judicial relief

5-9  to protect the interests of the state or the people of the state in the public

5-10  lands. [The right to enforce the provisions of NRS 321.596 to 321.599,

5-11  inclusive, vests exclusively in] If the attorney general[.] refuses to initiate

5-12  or defend such an action, the district attorney of the appropriate county

5-13  may do so.

5-14    Sec. 9.  NRS 328.500 is hereby amended to read as follows:

5-15    328.500  1.  The legislature finds that more than 87 percent of the land

5-16  in the State of Nevada is held by the Federal Government, of which 69

5-17  percent is public land, and the actions of federal agencies and

5-18  instrumentalities involving the public lands and waters appurtenant to and

5-19  public roads over those lands significantly affect the health, safety, welfare

5-20  and happiness of the citizens of this state and may interfere with the

5-21  traditional sovereign functions of the State of Nevada with respect to those

5-22  lands, waters and roads and their uses.

5-23    2.  Except as otherwise provided in subsection 3, the attorney general

5-24  may:

5-25    (a) On his own initiative or at the request of the governor or any state

5-26  agency, bring and maintain any action; or

5-27    (b) Intervene on behalf of or bring and maintain an action on the

5-28  relation of, any person in any meritorious case,

5-29  in any court or before any federal agency if any action or proposed action

5-30  by a federal agency or instrumentality with respect to the public lands or

5-31  waters appurtenant to or public roads over those lands impairs or tends to

5-32  impair the sovereignty of the State of Nevada.

5-33    3.  The attorney general may bring an action pursuant to this section if:

5-34    (a) The legislature has appropriated sufficient money for the operation

5-35  of his office to permit him to bring and maintain the action until its

5-36  conclusion; or

5-37    (b) He has obtained the permission:

5-38      (1) From the legislature, if it is in session, expressed by a concurrent

5-39  resolution; or

5-40      (2) If the legislature is not in session, from the interim finance

5-41  committee.

5-42    4.  As used in this section, “public lands” means all lands within the

5-43  exterior boundaries of the State of Nevada , including lands managed or

5-44  controlled by the Bureau of Land Management or the United States

5-45  Forest Service, except lands:

5-46    (a) To which title is held by any private person or entity;

5-47    (b) To which title is held by the State of Nevada, any of its local

5-48  governments or the University and Community College System of Nevada;

6-1    (c) Which are located within congressionally authorized national parks,

6-2  monuments, national forests or wildlife refuges or which are lands acquired

6-3  by purchase consented to by the legislature;

6-4    (d) Which are controlled by the United States Department of Defense,

6-5  Department of Energy or Bureau of Reclamation; or

6-6    (e) Which are held in trust for Indian purposes or are Indian

6-7  reservations.

6-8    Sec. 10.  The provisions of section 2 of this act do not apply to

6-9  offenses committed before the effective date of this act.

6-10    Sec. 11.  This act becomes effective upon passage and approval.

 

6-11  H