Argument before the Ninth Circuit:
"Federal Government Reducing Nevada
To Legal Status of Mere U.S. Territory"

   By Steve Miller
   copyright (c) 1996, Electric Nevada

The federal government's assertion that it holds title to 87% of the land surface of the State of Nevada is having both the practical and legal effect of depriving Nevada citizens of their constitutional rights to equal protection under the law.
That's the conclusion of a far-reaching legal argument now before the United States Court of Appeals for the Ninth Circuit in San Francisco.
The case -- brought by Elko County rancher Cliff Gardner and being watched closely by both friends and foes of the resurgent Sagebrush Rebellion -- is a fundamental challenge to the legal authority of federal agencies to own or administer lands in the American West.
[See EN 's July report on Gardner, his Ruby Valley ranch and the origins of the case.]
Not only does the appeal assert that the Federal government never had constitutional authority to legislatively reserve unappropriated lands in the West, but it also contends there is no constitutional basis for any Federal claim of police power jurisdiction over those same lands.
Gardner's attorney, Glade Hall, of Reno, acknowledges that defenses so radical-sounding will no doubt face long odds before the Ninth Circuit. But he remains convinced that -- at least on the basis of the actual underlying constitutional arguments -- the case is solid.
"We're hopeful," said Hall, "but,



realistically, there's not much the Ninth Circuit can do other than [for] one of the judges to write an opinion that will get the interest of the United States Supreme Court to take a look at this thing."
One encouraging element, he said, is that one of the judges assigned to the case has shown some understanding of state sovereignty issues in the past.
"So we're thinking we're going to get something other than just 'drop-kicked,'" said Hall.
Although the Ninth Circuit declined to hear oral arguments in the case, it did suggest Hall submit any additional legal points and authorities he saw as relevant.
That, he said, allowed him to open a new and promising front in the legal fight -- one based on new information about the statutes U.S. Attorneys assert provide legal authority for federal agencies to exercise police powers on the western lands.
Hall notes that federal attorneys routinely cite, as the legal basis for Federal police power claims over federally-administered land in Nevada, Title 18 of the U.S. Code, Section 7, which deals with "special


 
maritime and territorial jurisdiction of the United States."
The use of that citation, he said, routinely and unconstitutionally reduces citizens of the State of Nevada to a legal status akin to that of the inhabitants of U.S. territories -- like Guam and Puerto Rico.
In Nevada, he said, since 87 percent of the land surface is claimed and administered by the federal government, police power over 87 percent of the state's land surface is -- under the existing federal interpretation of the U.S. Code and the U.S. Constitution -- removed from control by the citizens of the state.
That means, wrote Hall in his supplemental authorities submitted to the Ninth Circuit, that Nevadans -- in comparison to residents of other states of the American union where the federal government does not assert it owns huge chunks of state land -- are deprived of an equal stature of citizenship.
In constitutional terminology, he says, Nevada and other Western states with large proportions of federally-administered land, are being deprived of "equal footing" under the law.
"Under the [federal] claim of ownership coupled with 18 USC 7, citizens of Nevada do not enjoy equal protection with that of




citizens of New Jersey (for example). While a citizen of Jersey participates in the domestic affairs of Nevada, a Nevada citizen has little to say about what goes on in New Jersey," wrote Hall.
"If a local sheriff in New Jersey becomes abusive in the exercise of his authority, the local community can vote him out of office. In Nevada, [federal] enforcement officials wielding authority over 87% of the land area of the state, are immune from local political control when they become abusive.
"The federal agencies now asserting management of these lands are implementing the full thrust of territorial or enclave power over these lands. Federal "police officers" now patrol these lands. Alleged violations of law in Ruby Valley, Nevada, for example, are prosecuted 360 miles away in Reno. They are prosecuted before juries selected from the Reno area where the jurors may not know of or understand the conditions and circumstances surrounding the alleged offense."
Hall says Congress never envisioned treating citizens of a state of the union in the way the federal government has treated Western citizens under its interpretation of 18 USC 7. He notes that the actual legislation underlying


 
18 USC 7 was passed in 1890, before the national forests or the Bureau of Land Management were established.
"This statute was enacted before the forest reserve act, before the Taylor Grazing Act, and while the Federal Government was conducting the disposal function with regard to the then unappropriated lands. Federal reservations were limited to true Article I, Section 8, Subsection 17 enclaves, Indian reservations, and national historical sites. The clear effect of 18 USC 7 as now applied is to return 87% of the State of Nevada to enclave or territorial status."
Hall includes in his submission to the Ninth an article published in the Nevada Lawyer, magazine of the Nevada Bar Association, written by two assistant U.S. Attorneys for the federal District of Nevada. He points out that they cite 18 USC 7 as the jurisdictional basis for enforcement of Title 36 of the Code of Federal Regulations -- "the statutory scheme which the Gardners are accused of violating."
Implicit in that federal citation, says Hall, "is the statutory conversion of 87% of the State of Nevada to territorial or enclave status."
"It is clearly beyond the legislative power of Congress to deal




with the land surface of a sovereign state in such a manner," he writes.
"Clearly, Congress never intended this result. The legal effect of such a result achieves a major shift in the Constitutional relationship between the public land states and the Federal Government. It is, in effect, a constitutional amendment that so alters the relationship between the Federal Government and the public land states, in comparison to the other 38 states, as to be fundamentally inconsistent with the federal structure of the Union."
Hall says it becomes very clear that the federal government is operating far beyond the bounds of its constitutional authority when one couples the federal claim of ownership with the statutory authority the feds assert in 18 USC 7.
The "results and implications ... are so clearly beyond and in excess of the intent of the framers [of the constitution] as to cause the entire claim of ownership to fail."
If the Gardner appeal, once heard by the Ninth Circuit, makes it to the U.S. Supreme Court, there are several parties, says Hall, who would most likely file additional friends-of-the-court briefs.
One is the State of Utah, he says, which "is in an uproar at this point because of that 1.7 million acres that Clinton declared a national monument."


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