FOR IMMEDIATE RELEASE

Public Land

Public Land and Other Matters Related Thereto November 5, 1993
TO: Robert Miller
Governor of the State of Nevada
TO: Bruce Babbitt
Secretary of the Interior
TO: Michael Espy
Secretary of Agriculture
TO: Jim Baca, Director
Bureau of Land Management
TO: David Unger, Acting Chief
U.S. Forest Service
SUBJECT: PUBLIC LAND AND OTHER MATTERS RELATED THERETO
 

Gentlemen:
INTRODUCTION

My name is Dick Carver, I am a Nye County Commissioner, member of the Nevada State Land Use Planning Advisory Council, a member of the Consumer Advisory Panel to Sierra Pacific Power Company, past member of the Nevada State Conservation Commission, past member of the United States Department of Interior Bureau of Land Management Battle Mountain District Advisory Council, a conservationist, and a second generation rancher here in Smoky Valley, Nye County, Nevada. There are two more generations living on the Carver Ranch today, my son and my grandchildren. My ranch does not have any dependency on public
lands for grazing, nor do I have any mining claims on public land today.
The Carver family has a long history involving the use of the public lands. The Carver family was in the cattle business when they came from Missouri to California in 1850. They drove 800 head of cattle from the Salt Lake area to Hangtown (Placerville), California, to supply beef for the miners of the California Gold Rush. The Carver family was the first family of non-hispanic, non-native American settlers to graze cattle on the public lands in what is now Yosemite National Park, including Yosemite Valley and Tuolumne Meadow. In 1869, because of drought, the Carvers moved their cattle south along the west slope of the Sierra Nevada mountains to the Kern River area, where they continue to operate today on public lands.

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Because of my "deep roots" in the public lands issue, and as a Nye County Commissioner, taking the oath of office to uphold the Constitution and laws of the United States and the Constitution and laws of the State of Nevada, I am addressing the above- mentioned topic.
These views are my own and as a Nye County Commissioner, but may or may not be the views of the Board of Nye County Commissioners. I am addressing the most critical issue before us today;
WHO OWNS THE PUBLIC LANDS IN NEVADA?
POINTS OF INTEREST
1. The United States Federal Government, Department of the Interior, and the Department of Agriculture are now regulating and managing certain public lands within the borders of the State of Nevada.
2. The United States Federal Government, Department of the Interior, Bureau of Land Management (BLM) is in the process of developing a new Tonopah Resource Management Plan (RMP). "The purpose of the Tonopah RMP is to provide the BLM
direction to manage its natural resources in the Tonopah Resource Area." (Draft Tonopah Resource Management Plan and Environmental Impact Statement, p 1-1).
3. The United States Federal Government, Department of the Interior, and the
Department of Agriculture have presented "a proposal to improve management of
rangeland ecosystems and the administration of livestock grazing on public
lands." "As the nation's principal conservation agency, the Department of
Interior has responsibility for most of our nationally-owned public lands and
natural resources." (Rangeland Reform '94).
4. After a thorough review of the United States Constitution, and the intent and
concerns of the framers of the United States Constitution, it does not contain
any authorization for the Federal Government of the United States to own, hold,
or exert its dominion over any public lands except for whatever land it needs
for its own governmental purpose as specified. Furthermore, the United States
Government is authorized to acquire such needed land in any of the several
states, by purchase, providing it shall be with the consent



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of the legislature of the state involved, and for those purposes specified.
Article 1, Section 8, Clause 17, of the United States Constitution, hereafter
referred to as 1.8.17).
5. The State of Nevada legislature has granted certain cessions to the United
States Federal Government pursuant to 1.8.17 in Nye County as follows: The land
for the Post Office and Federal building in Tonopah (NRS 328.270 and NRS
328.280), the Federal acquisition of land required by the Department of Defense
or Atomic Energy Commission. (Appendix B PART A - State Constitutional
Provisions and Statutes of General Effect Relating to the Acquisition of
Legislative Jurisdiction by the United States, for Nevada, found in Report of
the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas
within the States, Part I, The Facts and Committee Recommendations Submitted to
the Attorney General and Transmitted to the President, April 1956, pages
175-178).
6. The Nevada Revised Statutes clearly limit federal jurisdiction over the land
in Nevada.
NRS 328.075 (2) STATES AS FOLLOWS:
Federal jurisdiction over land to which this state has not ceded its
jurisdiction is limited to carrying out governmental purposes authorized by the
Constitution of the United States, and federal jurisdiction over lands held for
other purposes is limited to that exercisable by an ordinary proprietor under
the laws of this state. (my emphasis added).
7. The conclusion submitted to the Attorney General of the United States, the
Honorable Herbert Brownell, Jr. and transmitted to President Eisenhower in 1956
by The Interdepartmental Committee for the Study of Jurisdiction over Federal
Areas within the States is as follows:
1. "In the usual case there is an increasing preponderance of disadvantages over
advantages as there increases the degree of legislative jurisdiction vested in
the United States."
2. "With respect to the large bulk of federally owned or operated real property
in the several states



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and outside of the District of Columbia, it is desirable that the federal
government not receive, or retain, any measure whatever of legislative
jurisdiction, but that it hold the installations and areas in a proprietorial
interest status only, with the legislative jurisdiction remaining in the several
states." (Id 70, Part I).
8. The intent of the framers of the Constitution of the United States was to
guarantee to each of the states sovereignty over all matters within its
boundaries except for those powers specifically granted to the United States as
agent of the state. (NRS 321.596(4)). (my emphasis added).
9. The certain public lands mentioned in my first point of this letter are in
fact public lands that belong to and are under the jurisdiction and control of
the State of Nevada.
NRS 321.5973 STATES AS FOLLOWS:
Public lands and minerals are property of the State; rights and privileges under
Federal laws to be preserved; administration of land to conform with Treaties
and Compacts.
1. Subject to existing rights, all public lands in Nevada and all minerals not
previously appropriated are the property of the State of Nevada and subject to
its jurisdiction and control.
2. Until equivalent measures are enacted by the State of Nevada, the rights and
privileges of the people of the State of Nevada under the National Forest
Reserve Transfer Act (16 U.S.C. 471 et seq. ), the General Mining Laws (30
U.S.C. 21 et seq. ), the Homestead Act (43 U.S.C. 161 et seq. ), the
Taylor Grazing Act (43 U.S.C. 315 et seq. ), the Carey Act (43 U.S.C. 641
et seq.), and the Public Rangelands Improvement Act (43 U.S.C. 1901 et seq.
), and all rights of way and easements for public utilities must be preserved
under administration by the state.



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3. Public lands in Nevada which have been administered by the United States
under international treaties or interstate compacts must continue to be
administered by the state in conformance with those treaties or compacts. (Added
to NRS by 1979, 1976).
10. On the public lands owned by Nevada, there is a split estate or other
private property rights (i.e., water rights, minerals, grazing rights, timber
rights, access rights, etc.). These rights must be recognized and are by state
law.
NRS 321.5973(1) STATES AS FOLLOWS:
"Subject to existing rights, all public lands in Nevada and all minerals not
previously appropriated are the property of the State of Nevada and subject to
its jurisdiction and control."
11. The following discusses the administration of the public lands within the
State of Nevada.
NRS 321.5977 STATES AS FOLLOWS:
Objectives in administering public lands. The public lands of Nevada must be
administered in such a manner as to conserve and preserve natural resources,
wildlife, artifacts, prehistoric sites and artifacts, paleontological resources
and to permit the development of compatible public uses for recreation,
agriculture, ranching, mining and timber production and the development,
production and transmission of energy and other public utility services under
principles of multiple use which provide the greatest benefit to the people of
Nevada. (Added to NRS by 1979, 1365; A 1981, 323 ).
12. Nye County, as a governmental subdivision of the State of Nevada, is
responsible for public lands management in cooperation with the State of Nevada
on public lands within -the borders of Nye County. Nye County has a Policy Plan
for Public Lands which was developed with the cooperation of the State of Nevada
(NRS 321. 640-770) and approved by the Nye



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County Board of Commissioners on April 3, 1985. Nye County has been in the
process of updating this plan. I have been holding any further action on this
plan until I could research who owns the public lands.
In conclusion, unless evidence can be produced to the contrary, Nye County in
cooperation with the State of Nevada, is the public land management authority
within the borders of Nye County on all public lands with the exception of those
lands pursuant to 1.8.17 of the United States Constitution.
ISSUES
To understand clearly how this conclusion was drawn, one must look back over the
past history of the public lands. These lands at one time were called "public
domain." We have to go back even further into the past, back to the original
thirteen colonies (1783), where there was no "public domain" as we later came to
know it. When the thirteen colonies became free sovereign states, all the land
within the border of each state was either privately owned or belonged to that
state. There was no central government, and each unit was a complete independent
sovereign state or small nation unto itself. In the states that were created out
of the Northwest Territory, lands not privately owned were called waste or
unappropriated lands.
The book "Golden Fleece in Nevada" written by Judge Clel Georgetta states "In
1780, the Continental Congress adopted a resolution requesting the thirteen
original states to surrender to the central government (the Confederation) all
the lands they claimed in the territory west of their original boundaries to the
Mississippi, so such lands could be sold to private interests for money to pay
off the debt incurred by the Revolutionary War, and then the area would be
divided into new states to be admitted into the Confederation on the same basis
as the original states." (@ 151).
Judge Georgetta continues "The thirteen independent sovereign states were first
joined together in a Federal Union known as 'The Confederation' and in 1781
ratified 'The Articles of Confederation and Perpetual Union.' Those Articles
contain the following words:
Article II. Each state retains its sovereignty, freedom and independence, and
every power, jurisdiction and right, which



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is not by this confederation expressly delegated to the United States in
Congress assembled.
Article IX. ...provides also that no state shall be deprived of territory for
the benefit of the United States. (Id 150).
There can be no doubt that the purpose of guaranteeing each state its complete
sovereignty was to waylay all fear of joining the organization. It was those
words of guaranty in the Articles that the various states joined the
'Confederation' in order to form a Central Government to perform certain
functions for all the states as a group. It was to be a central government with
very limited power." (Id 151).
"The transfer of the dominion of the central government comprised of the land
west of the Appalachian Mountains to the Mississippi became known as 'the
Northwest Territory.' In 1787, the Continental Congress created, by the Articles
of Confederation, passed a legislative act which came to be known as 'the
ordinance of 1787' pertaining to the Northwest Territory. It contained these
words":
"Section 13 ...to provide also for the establishment of states, and permanent
government therein, and for their admission to a share in the Federal Councils
on an equal footing with the original states."
"Article V ...and whenever any of said states shall have sixty thousand free
inhabitants therein, such state shall be admitted, by its delegates, into the
Congress of the United States, on equal footing with the original states, in all
respects whatsoever..." (Id 152, 153).
"In view of the fact that the Articles of Confederation did not contain any
provision for the Central Government to own, hold, or control any public land,
it was considered that the Central Government - 'The Confederation' - held these
lands in trust for the states that would be later created in the area." (Id
152). "Since this was a legislative act adopted by the Continental Congress
before the United States Constitution was adopted, there seemed some doubt that
it continued to be in full legal effect. Therefore, after the new Constitution
was in effect, the Congress of the United States, created by the Constitution,
reenacted the ordinance of 1787 in its exact words." (Id 152).



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To insure the continuation of "the Articles of Confederation" and those of "the
Ordinance of 1787", the Constitution of the United States which became effective
on March 4, 1789 contains Article VI, Section 1 (hereafter referred to as 6.1).
6.1 STATES AS FOLLOWS:
"All debts contracted and engagements entered into before the adoption of this
Constitution shall be as valid against the United States under this Constitution
as under the Confederation."
The United States operates under the numerous restrictions of the Constitution.
No matter what Congress or the States might wish to do, they have to stay within
the boundaries of the Constitution. This is why the framers are credited with
the invention of a new kind of republic based on "Constitutional Supremacy."
This makes the "supremacy clause" the cornerstone of the whole American
political structure." (The Makings of America, ~. Cleon Skousen @657).
The "Supremacy clause" Article VI, Section 2 (hereinafter referred to as 6.2)
recognized both the supremacy of the United States Constitution and laws, and
the supremacy of the State Constitution and laws.
6.2 STATES AS FOLLOWS:
"This Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made or which shall be made, under the
authority of the United States, shall be the supreme law of the land; and the
Judges in every state shall be bound thereby, any thing in the Constitution or
laws of any State to the contrary notwithstanding."
The purpose of the supremacy clause was to prevent the States >from invading
those areas which had been specifically delegated to the federal government. The
framers were equally concerned with the possibility of the federal branches of
government invading the supreme authority retained by the States or trying to
acquire exclusive domination of areas in which there was joint jurisdiction.
Either case involved the ugly word 'usurpation,' which all of the Framers so
vigorously warned against. (Id 657- 658 The Makings of America, Skousen J. "The
word supreme means



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no more than this - that the Constitution and laws made pursuant thereof, cannot
be controlled or defeated by any other law...the State, as well as individuals,
are bound by these laws; but the laws of Congress are restricted to a certain
sphere, and when they depart from this sphere, they are no longer supreme or
binding." (Id 659, Skousen citing Hamilton).
The misconception of the Supremacy Clause is "that Congress has supreme power."
Congress has only those powers granted by the Constitution. The evidence is
clear that "the laws of the United States shall be made according to the
Constitution of the United States and shall be supreme." Another reading is that
"the Constitution expressly confines this supremacy to laws made pursuant to the
Constitution of the United States."
"This Constitution as the powers therein granted, is constantly to be the
supreme law of the land... It is not the supreme law in the exercise of a power
not granted. It can be supreme only in cases consistent with the powers
specially granted, and not in usurpation." (Id 659, Skousen citing Davie).
6.2 (lST PART) STATES AS FOLLOWS:
"This Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made or which shall be made, under the
authority of the United States, shall be the supreme law of the land;..."
Given the most casual reading of this part of the provision clearly demonstrates
that it is talking about the supremacy of the laws of the United States made
pursuant to the United States Constitution.
6.2 (2ND PART) STATES AS FOLLOWS:
"...and the judges in every state shall be bound thereby, any thing in the
constitution or laws of any state to the contrary notwithstanding."
Again, "even the most casual reading of this part of the provision clearly
demonstrates that it is talking about the state constitution, not the national
Constitution." This supremacy is with the States. (The Makings of America,
Skousen @ 662).



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The United States Congress was not granted the power to make state law pursuant
to state constitution. Only the state can make laws pursuant to the state
constitution. The United States Constitution," when adopted, will become a part
of our state constitution; and the latter must yield to the former only in those
cases where power is given by it. It is not to yield to it in any other case
whatever..." (Id 659, Skousen citing Iredell).
Thus, I conclude that there are two supremacies, that of the United States
Constitution and that of the State Constitution. State supremacy is "auxiliary"
(Id 663) to the supremacy of the laws made pursuant to the United States
Constitution. Powers not delegated in the United States Constitution to Congress
are reserved to the States or to the people through the Tenth Amendment to the
United States Constitution.
The Tenth Amendment, "powers retained by the states and the people," clearly
strengthens my position that the powers granted to Congress through the
Constitution of the United States by the people are limited, and all other
powers are retained by the states or the people.
This amendment was adopted to reassure the people that the national government
would not swallow up the states. It confirms that the states or the people
retain all powers not qiven to the national government, (The Worldbook
Encyclopedia CI-CZ Volume 4, page 798). (my emphasis added)
TENTH AMENDMENT STATES AS FOLLOWS:
"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively, or to
the people."
This brings us to the "powers granted to Congress." The enumerated powers
delegated to Congress are clear. Congress shall have the exclusive power to make
ALL federal laws, and that those laws would pertain only to the powers
enumerated in the Constitution. (The Making of America, Skousen @ 252). From
reading the intent of the framers of the Constitution, we begin to see how much
they had suffered from war and what they had learned from their bitter
experience with the weak constitutional structure of the Articles of
Confederation. In 1787, "they sat in solemn contemplation of the powers they
were not willing to admit they must relinquish to a central government. Many of



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those powers were volatile and dangerous - open to abuse." (Id 371). The framers
therefore tried to incorporate into the Constitution the necessary checks and
balances so that if these powers were abused, there would be peaceful remedies
available to protect the people and preclude the necessity of going to war to
regain their rights. "One of the most important reasons the States united was to
promote their mutual defense. Spelling out the war powers was, therefore, a
highly significant segment of the Constitution." (Id 439). The enumerated powers
of Article 1, Section 8, Clauses 11-16 are considered the war powers. One of the
war powers, Article 1, Section 8, Clause 14 (hereinafter referred to as 1.8.14)
has the word land in it.
1.8.14 STATES AS FOLLOWS:
1.8.14, "To make rules for the government and regulation of the land and naval
forces."
This power clearly does not have anything to do with public lands, but refers to
land forces (i.e., United States Army) and naval forces. "This provision gave
the Congress the right to dictate the specific rules and regulations under which
the land and naval forces of the United States would operate. This is a very
important provision. The Constitution made the President the commander in chief,
but it gave the Congress the power to lay down the regulations and restrictions
under which, he would be required to operate." (The Makings of Amer!ca, Skonsen
@ 449).
It is also interesting to note that following the "war power" provisions
1.8.11-16, the next enumerated power 1.8.17 gives Congress the AUTHORITY to set
up a ten square mile restricted area for the seat of government, to be
exclusively under the control of the Congress, (Id 456) for Congress should have
a permanent, secure location. The individual States had failed to protect
Congress in the past. 1.8.17 also gives the Congress the AUTHORITY to exercise
complete jurisdiction over lands and facilities for defense of the nation which
it purchased with consent of the state legislatures for the purposes specified.
Here, in this provision, is still the concern of war, and is the only enumerated
power that mentions land.
1.8.17 STATES AS FOLLOWS:
"To exercise exclusive legislation in all cases whatsoever over such district
(not exceeding ten square miles) as may, by cession of particular states and the




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acceptance of Congress, become the seat of government of the United States and
to exercise like authority overall places purchased, by the consent of the
legislature of the state in which the same shall be, for the erection of forts,
magazines, arsenals, dockyards, and other needful buildings."
1.8.17 is very clear that the people of the States empowered Congress to
exercise complete jurisdiction and authority over all lands or facilities
purchased within a state, providing it shall be with the consent of the
legislature of that state. Such lands shall be used for the "erection of forts,
magazines, arsenals, dock yards, and other needful buildings." Nowhere does
Congress have enumerated power to exercise complete jurisdiction and authority
over state owned public lands within the borders of Nevada. "It was assumed that
as soon as a new teople of that state would acquire title to every acre of land
other than a very small percentage granted to the federal government for the
erection of forts, magazines, arsenals, dock yards, and other needful
buildings." (The Making of America Skousen @ 458). (my emphasis added).
"The consent requirement of 1.8.17 was intended by the framers of the
Constitution to preserve the State's jurisdictional integrity against federal
encroachment. The federal government cannot, by unilateral action on its part,
acquire legislative jurisdiction over an area within the exterior boundaries of
a state." (Report of the Interdepartmental Committee for the study of
Jurisdiction over Federal Areas within the States. Part II @ 46, 47).
Article 1, Section 8, Clause 18 (hereafter referred to as 1.8.18), which is
called an "implied power" (The Making of America Skousen @ 778) gives the
Congress the AUTHORITY to pass any other laws needed to implement the provisions
of the Constitution. It does not delegate additional powers. "The Constitution
had enumerated all the powers which the government should have, but did not say
how they were to be exercised. This clause explained how they were to be
exercised." (Id 459-460 Skousen citing Nicholas).
1.8.18 STATES AS FOLLOWS:
"To make all laws which shall be necessary and proper for carrying into
execution, the foregoing powers, and all other powers vested by this



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Constitution in the government of the United States or any department or officer
thereof."
We have reviewed Article I, the Legislative Branch which includes the powers
granted to Congress, Section 8. There is Article II that is the Executive
Branch, and Article III, the Judicial Branch, the three branches divide the
powers of the United States government. This division, called the separation of
powers, is designed to prevent any branch of the government from becoming too
powerful.
Next there is Article IV, much of this article was taken word for word from the
old Articles of Confederation. This Article is "the relation of the states to
each other". (The World Book Encyclopedia CI-C2 @ 798M). This is another section
of the United States Constitution that deals with land, lands that are to become
states. This is the section that will be referred to as the statehood section,
Article IV, Section 3 (hereinafter referred to as 4.3). At the time the United
States Constitution was formed and adopted, remember that the Confederation held
the Northwest Territory in trust for the establishment of states. Also remember
that "the Articles of Confederation" and "the Ordinance of 1787" were valid
under the new consiitution, 6.1. The question of how the new central government
was going to form and admit new states in the future, beyond the original 13
states, had to be addressed. This is how and why Article IV, Section 3, Clause 1
(hereinafter referred to as 4.3.1) was inserted into the United States
Constitution (my emphasis added).
4.3.1 STATES AS FOLLOWS:
New states may be admitted by the Congress in the Union; but no new states shall
be formed or erected within the jurisdiction of any other state; nor shall any
state be formed by the junction of two or more states, or parts of states,
without the consent of the legislatures of the states concerned, as well as of
the Congress.
Now that we see how the Constitution covers property in the future, what about
the existing property that the government held from the original 13 states? How
was Congress going to dispose of the lands pertaining to the Northwest Territory
and any other property that the original 13 states had ceded to the
Confederation, and recognized by the new Constitution in 6.1.



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This is how and why Article IV, Section 3, Clause 2 was inserted into the
Constitution.
4.3.2 STATES AS FOLLOWS:
"The Congress shall have powers to dispose of and make all needful rules and
regulations, respecting the territory belonging to the United States; and
nothing in the Constitution shall be construed to prejudice any claim of the
United States, or of any particular state." (my emphasis added).
The Supreme Court has decided this "property clause" pertains only to a certain
territory at the time the Constitution was adopted and was considered to only
last until the territory was made into states, and the debt was paid.
Thereafter, the only power Congress was to have was to be one of the enumerated
powers of 1.8 of the United States Constitutions. The statehood article surely
would not have given Congress unlimited power to make any laws necessary and
proper over whatever Congress wanted to do. This would have defeated the
limiting powers of 1.8 of the United States Constitution and would also make it
impossible to determine the exact powers retained by the states in the Tenth
amendment.
Others consider this "property clause" as pertaining to a territory and property
before it becomes a state, as when a state is admitted, all property is granted
to the state on an equal footing with the original thirteen states.
It is true that Article 4, Section 3, Clause 2 of the Constitution states the
Federal Government shall have power to make rules and regulations respecting
"the territory or other property belonging to the United States." What did those
words refer to? "...other property belonging to the United States" no doubt
referred to its "forts, magazines, arsenals, dock yards, and other needful
buildings" specifically listed in Article 1, Section 8, Clause 17. What did the
word "territory" refer to? According to various debates among early American
Statesmen, it referred to the lands west of the Appalachian Mountains which the
central government had accepted from the original states to be held in trust
until new states could be created and admitted to the Union as full sovereign
states on an equal basis with the original states, which owned and had full
dominion over all lands within their borders. (Golden Fleece in Nevada, Clel
Georgetta, Judge @153).



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The Framers of the Constitution could have enumerated other powers in 1.8 of the
Constitution that could have included the authority for the federal government
to own, manage and control all public lands. The enumerated powers delegated to
Congress limits the control of land. The management and control of certain
public lands were clearly retained by the states through the Tenth Amendment.
There were many lengthy debates in Congress on issues dealing with public lands.
Senator Hendricks made one while speaking of the ordinance of 1787: "this union
is in theory formed of sovereign, equal people and independent states. In the
older members of this Confederation, the federal government sets up no claim to
the waste and unappropriated lands, has no land office, derives no revenue from
the sale of land. The ordinance contemplated the public lands as belonging to
new states, after their admission in the union... As a further inducement to the
new states to join the Confederation the ordinance stipulated that they should
be admitted into the union... on an equal footing with the original states in
all respects whatever, and the Constitution in substance of the same policy,
provides that all engagements entered into before the adoption of the
Constitution shall be as valid against the United States, under the Constitution
as under the Confederation so that the Articles of Confederation, the Acts of
Cessions, the ordinance of 1787 and the Constitution itself, form a perfect and
harmonious chain of policy - the grand object of which was the union and
equality of the states. Then Mr. President, if at all correct in this view, it
may well be asked by what means have the new states been. deprived of their
equality of the right of soil... The public lands should be ceded to the states
in which they lie because their present condition is not warranted by the letter
of the Constitution of this government... Its powers are carefully enumerated
and specified. I deny, sir, the limits of the states, except for the purpose
designated by the Constitution such as forts, magazines, arsenals, dockyards and
other needful buildings, and to enable Congress to hold lands even for these
purposes, the consent of the legislature of the states is declared to be
necessary by the expressed language of the Constitution..." (Id 154, 155).
As one can see, waste or unappropriated lands, later public domain, and still
later, public lands were always a concern and discussed, but their ownership and
control were retained by the states through the 10th amendment to the
Constitution.





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We definitely do not want to overlook treaties, because they are also "supreme
law of the land."
A PORTION OF 6.2 STATES AS FOLLOWS:
"...and all Treaties made, or which shall be made, under the Authority of the
United States, shall be made the supreme Law of the Land..."
Earlier, we mentioned the importance of "the ordinance of 1787." Let us now
discuss a treaty between Mexico and the United States. It should be pointed out
that there are several treaties of great importance to the public lands issue
between 1787 and 1848 (i.e., Louisiana Purchase, etc.).
In 1848, by the Treaty of Guadaloupe Hidalgo, Mexico ceded to the United States
the vast southwest. "The states of California, Arizona, Nevada, Utah, and parts
of New Mexico, Colorado, and Wyoming were carved out of this combination of
purchase and treaty. This treaty contains an interesting section: ...shall be
formed into free, sovereign, and independent states and incorporated into the
Union of the United States as soon as possible, and the citizens thereof shall
be accorded the enjoyment of all the rights, advantages, and immunities as
citizens of the original states..." (Golden Fleece in Nevada, Judge Georgetta @
165). This is very interesting because we are now talking about the very land
that is to become the state of Nevada.
What is an independent sovereign state as one of the original thirteen states?
It is a state that retains its sovereignty, freedom and independence, and every
power, jurisdiction and right, which is not expressly delegated to the United
States Congress by the Constitution and shall not be deprived of territory for
the benefit of the United States. (The articles of confederation, and 6.1 of the
United States Constitution).
It is also very interesting to note that "when the original states became free
sovereign states, all the land within the border of each state was to be either
privately owned, or belong to the state." (Golden Fleece in Nevada, Judge
Georgetta @ 150). Nevada cannot be a free sovereign state, as the original
thirteen states, unless all the lands within its borders are either privately
owned or belong to the state except those pursuant to 1.8.17. This is why the
Federal Government must purchase, with the consent of the state legislature,
land for specified



Public Lands
November 5, 1993
Page 17
purposes. The land belongs to the state, this was the intent of the framers of
the United States Constitution and is the limit placed upon the federal
government today.
It is important to look at how Nevada became a state. On March 21, 1864,
Congress passed an act called "The Enabling Act."
THE ENABLING ACT STATES AS FOLLOWS:
A part of Section 1: "Enable the people of the Territory of Nevada to form a
Constitution and State Government and for the admission of such State into the
Union on an Equal Footing with the original States in all respects whatsoever."
So, again, we have the same intent as the Treaty of Guadaloupe Hidalgo of 1848 -
free sovereign state as the original thirteen states.
SECTION 4, CLAUSE 3 OF "THE ENABLING ACT" STATES AS FOLLOWS:
"That the people inhabiting said territory do agree to declare that they forever
disclaim all right and title to the unappropriated public lands lying within
said territory, and that the same shall be and remain at the sole and entire
disposition of the United States..."
Let's get a clear reading and understanding of this part of-"The Enabling Act."
The United States Congress was the only one that could pass an act to allow the
people of the Nevada Territory to form a Constitution and State Government and
to admit this Territory into the Union as a state. (4.3.1 U.S. Constitution).
The people of the Nevada Territory had no authority to pass this act. Research
has shown that first, the people of the Territory of Nevada had to give up all
their "interest" in the unappropriated lands of the Nevada territory to the
Congress of the United States so Congress could pass said lands to the State of
Nevada upon acceptance of Nevada into the Union. Then Nevada would become a free
sovereign state as the original thirteen states relating to land.
If the unappropriated public lands referenced in "The Enabling Act'' were not
passed from Congress to the new state of Nevada and Congress held these lands in
the name of the Federal Government, it would be a "violation of the United
States Constitution as



Public Lands
November 5, 1993
Page 18
these lands are not pursuant to 1.8.17 of the U.S. Constitution." (Golden Fleece
!n Nevada,- Judge Georgetta @ 168). Remember that the Constitution limits what
the federal government can own; it does not grant unlimited ownership to the
federal government. It would also be a violation of:
a. The Congressional Act of 1834 which provided any land held by the federal
government within a new state would be held in trust for the state until it
could pass into private hands.
b. The Treaty of Guadaloupe Hidalgo of 1848, as Nevada would be denied the right
of a free sovereign as an original state in all respects whatsoever.
And it would be a breach of trust, and void President Lincoln's proclamation
where he said, "...do hereby declare and proclaim that the said State of Nevada
is admitted into the Union on an equal footing with the original states."
The Constitution of the United States provides the basis of government. It
divides the powers and duties between the federal and state governments,
limiting the power of the federal government, and the states retaining all other
powers.
AUTHORITIES
Judicial review is the method used to answer basic questions as to what the
Constitution means in case of dispute, and confirms the state and national
governments with their constitutiona1 limits. (The Worldbook Encyclopedia, U-V,
Volume 20, page 83).
Review of some authorities from court cases relevant to the public lands issue.
"When the state of Alabama was admitted to the Union, one of the requirements
laid down by the federal government was that the state must relinquish claim to
all public lands within its borders. The compact between the United States and
the state of Alabama provided that the people of Alabama forever disclaimed all
right or title to the waste or unappropriated lands lying within the state and
that the same would remain at the sole disposal of the United States. That is
almost the same wording we have in the Nevada 'Enabling Act."' (Golden Fleece in
Nevada, Judge Georgetta @ 158).



Public Lands
November 5, 1993
Page 19
"Later there was a dispute over the legal effect of such a compact. One party
contended the federal government was the out- and-out owner of the land and had
complete jurisdiction and sovereignty over it. The other party contended the
federal government had no power under the Constitution to hold land in Alabama
after it became a state." (Id 158).
"The dispute finally reached the Supreme Court of the United States in the case
of: POLLARD V. HAGEN, 44 U.S., (3 How), 212 (1845) 11 Law Ed. 565. Fact: Pollard
claimed the land in the City of Mobile under a patent issued by an act of
Congress." (Id 158). "Hagen claimed the land by a chain of title through the
state of Alabama going back to a 'Spanish Grant.' At the time Alabama was
admitted to the Union as a state, this land was under the Mobile River, a
navigable stream." (Id 158).
"The United States Supreme Court held Alabama had the same jurisdiction over
navigable rivers, and the soil under them as the original thirteen states had.
The compact (Enabling Act) through which Alabama became a state contained the
provision 'that the people of Alabama forever disclaimed all right or title to
the waste or unappropriated lands lying within the state, and that the same
should remain at the sole disposal of the United States. The United States
Supreme Court held that provision was in violation of the United States
Constitution and was therefore void.'" (Id 158). (my emphasis added)
The misconception about the "Enabling Act" of Alabama and Nevada, is that the
people of the State of Alabama disclaimed all riight and title to waste or
unappropriated lands after statehood, where in Nevada the people of the Nevada
territory (before statehood) disclaimed all right and title to unappropriated
public lands in the Nevada Territory. There is a very big difference. Could it
be that the Nevada disclaimer (Enabling Act) is being interpreted as being the
people of the STATE of Nevada rather than the people of the territory of Nevada?
There is no constitutional provision for the people of a territory to discard
the sovereignty and equal footing of a future state. The people of the territory
of Nevada were only giving up their interest at that time to the unappropriated
public lands.
NEVADA V. UNITED STATES 512 F. Supp. 166 (1981). The State of Nevada brought an
action alleging that the Federal Land Policy and Management Act (FLPMA) of 1976
was unconstitutional. The question of ownership of the public lands was not
asked. The court entered judgement for defendants that the FLMPA was



Public Lands
November 5, 1993
Page 20
constitutional. The Ninth Circuit affirmed the lower court decision and
referenced that this case does not involve a claim to title of land. The Ninth
Circuit upholding the lower court decision, "The federal government owns
approximately 88 percent of the land within the borders of the state of Nevada,
according to the uncontroverted allegation of the state in this case... Nevada
agrees that this case does not involve the claim of title to land... Any further
challenges to actual or anticipated federal action with respect to federally
held land will arise in a different legal and historical context from that
surrounding the 1964 moratorium which prompted this suit. " (699 F 2d 486- 488,
Judge Schroeder, Ninth Circuit).
"The purposes of the cessions of unappropriated lands to the federal government
was for the land to be sold, and the proceeds applied to paying the public debt
incurred in the Revolutionary War." "...[t]he United States never held any right
to the vacant lands in any of the new states except temporarily to execute the
trusts created by the original states in their deeds of cession of their western
lands to the federal government. 'Both of these deeds of cession stipulated,
that all the lands within the territory ceded, and not reserved or appropriated
to other purposes, should be considered as a common fund for the benefit of all
the United States, to be faithfully and bona fide deposed of for that purpose,
and for no other use or purpose whatever.'" (Id 170, District Court citing
POLLAND V. HAGEN.
In 1787, Congress also specified that new states shall be admitted into the
Union "...on an equal footing with the original states in all respects
whatever." (Id 170, District Court citing POLLAND V. HAGEN).
"Whenever the United States shall have fully executed these trusts, the
municipal sovereignty of the new states will be complete throughout their
respective borders, and they, and the original states, will be upon an equal
foot, in all respects whatever." (Id 170, District Court citing POLLAND V.
HAGEN).
The Nevada court addressing the property clause declares that "the limitations
on what the federal government can do with its property, by reason of the origin
of the property clause, apply only to lands within the original thirteen
states..." (Id 171, citing UNITED STATES V. GRATIOT 39 U.S. (14 Pet) 526 10 L.
Ed. 573) (1840).



Public Lands
November 5, 1993
Page 21
Said court discussed the reasons for insertion of the property clause in the
Constitution. "The federal government was to be one of carefully limited powers,
and it had no grant of authority to receive and administer the unappropriated
lands and other properties, such as military equipment and supplies, which the
thirteen original sovereign states wished to cede to it for the common good. "
(Id 170, District Court citing POLLAND V. HAGEN). The raising of money to pay
the public debt by selling the lands was the main object of the cessions. The
property clause provided the United States government with the power to take
possession of the properties and protect them, so that they could be disposed of
in an orderly fashion. It applies only to the property which the states held in
common at that time, and has no reference whatever to any territory or other
property which the new sovereignty might afterwards itself acquire." DRED SCOTT
V. STANFORD, 60 U.S. (19 How) 393, 15, L. Ed. 691 (1856). "It does not speak of
any territory, nor of territories, but uses language which, according to its
legitimate meaning points to a particular thing. The power is given in relation
only to the territory of the United States. That is, a territory then in
existence, and known or claimed as the territory of the United States. It begins
its enumeration of powers by that of deposing, in other words, meaning sale of
the lands, or raising money from them, which as we already said, was the main
object of the cessions, and which accordingly the first thing provided for in
the article." DRED SCOTT V. STANFORD, 60 U.S. (19 How) 393, 436 (1856).
In KANSAS V. COLORADO, 206 U.S. 46, "The first article, treating legislative
powers, does not make a general grant of legislative power. It reads Article 1,
Section 1, all legislative powers herein granted shall be vested in a Congress,
etc." Then, in Section 8 it mentions and defines the legislative powers that are
granted. By reason of the fact that there is not a general grant of legislative
power, it has become an accepted constitutional rule that this is a government
of enumerated powers. Further, Kansas citing FAIRBANK V. UNITED STATES, 191 U.S.
283, 288: "We are not confronted here with a question of the extent of the
powers of Congress, but one of the limitations imposed by the Constitution on
its action, and it seems to us clear that the same rule and spirit of
construction must also be recognized. If powers granted are to be taken as
broadly granted and as carrying with them authority to pass those acts which may
be reasonably necessary to carry them to full execution; in other words, if the
Constitution in its grant of powers is to be construed that Congress shall be
able to carry into full effect the powers granted, it is equally imperative that, where prohibition or limitation is placed upon the powers of Congress, prohibition or limitation should be enforced in its spirit and to its entirety. It would be a strange fault of construction that language granting powers is to be liberally construed, and that language of restriction is to be narrowly and technically construed." (Id 91).
"But it is useless to pursue the inquiry further in this direction. It is enough
for the purpose of this case that each state has full jurisdiction over the
lands within its borders, including the beds of streams and other waters." (Id
93).
ST. LOUIS-SAN FRANCISCO RY. V. SATTERFIELD 27F 2d 586 (1928), "The legislature
of a state has unlimited power to transfer jurisdiction to the United States
except as it may be restricted by state or federal Constitutions.'~
KLEPPE V. NEW MEXICO 426 U.S. 529, 49 L. Ed. 2d 34 (1976), is another
constitutional issue like the Nevada case. The question asked was if the Wild
and Free-Roaming Horse and Burros Act was constitutional. Here again this case
did not involve a claim of title to the land. The Supreme Circuit Court found
the Wild Horse Act constitutional.
This case was a reversal of the District Court ruling. Supreme Court Justice
Marshall, "...appellees mistakenly read this language to limit Congress' power
to regulate activity on the public lands...and while the furthest reaches of the
power; granted by the Property Clause have not yet been definitively resolved,
we have repeatedly observed that the power over the public lands thus entrusted
to Congress is without limitation... we find that, as applied to this case, the
act is a constitutional exercise of congressional power under the Property
Clause...we need not, and do not decide whether the Property Clause would
sustain the act in all of its conceivable applications." (Id 538, 539, 546).
A most recent case NEW YORK V. UNITED STATES 120 L. Ed 2d 120 (1992), "...the
Constitution question is as old as the Constitution: it consists of discerning
the proper division of authority between the federal government and the states.
We conclude that while Congress has substantial power under the Constitution to
encourage the states to provide for the disposal of the radioactive waste
generated within their borders, the Constitution does not confer upon Congress
the ability simply to compel the states to do so..." (Id 133).
"...If a power is delegated to Congress in the Constitution, the Tenth Amendment
expressly disclaims any reservation of the power to the states; if a power is an
attribute of state sovereignty reserved by the Tenth Amendment, it is
necessarily a power the Constitution has not conferred on Congress." See UNITED
STATES V. OREGON 366 U.S. 643, 649, 6 L E. 552, 66 S ct 438 (1946); OKLAHOMA EX
REL. PHILLPS V. GUY F. ATKINSON CO., 313 U.S. 508, 534, 85 L. Ed. 1487, 61 S ct
1050 (1941) (Id 137).
"It is in this sense that the Tenth Amendment 'states but a truism that all is
retained which has not-been surrendered.' UNITED STATES V. DARBY, 312 U.S. 100,
124, 85 1 Ed. 609, 61 S ct 451, 132 ARL 1430 (1941). As Justice Story put it,
'This amendment is a mere affirmation of what, upon any just reasoning, is a
necessary rule of interpreting the Constitution. Being an instrument of limited
and enumerated powers, it follows irresistible, that what is not conferred, is
withheld, and belongs to the state authorities..."' (Id 137).
"Congress exercises its conferred power subject to the limitations contained in
the Constitution." (Id 137). (my emphasis added).
The United States Constitution did not allow for the Congress to regulate
private property in the states; the regulation of private property in any state
falls under the sovereignty and jurisdiction of the state's policy power. In NEW
YORK V. UNITED STATES, the court further states, "As an initial matter, Congress
may not simply commandeer the legislative process of the states by directly
compelling them to enact and enforce a federal regulatory program." HODEL V.
VIRGINIA SURFACING MINING AND RECLAMATION ASSOCIATION INC., 452 U.S. 254, 288,
69 L Ed 2d 1, 101 S ct 2352 (1981). In HODEL, the court upheld the Surface
Mining Control and Reclamation Act of 1977 precisely because it did not
'commandeer' the states into regulation mining." The court found that "the
states are not compelled to enforce the steep-slope standard, to expend any
state funds, or to participate in the federal regulatory program in any manner
whatsoever." (Id 141).
 

IF THE STATE RATIFIED OR GIVES CONSENT TO ANY AUTHORITY WHICH IS NOT
SPECIFICALLY GRANTED BY THE UNITED STATES CONSTITUTION, IT IS NULL AND VOID.

The NEW YORK court further states: "Where Congress exceeds its authority
relative to the states; therefore, the departure from the Constitutional plan
cannot be ratified by the "consent" of state officials." An analogy to the
separation of powers among the branches of the federal government clarifies this
point. The Constitution's division of power among the three branches is violated
where one branch invades the territory of another, whether or not the
encroached-upon branch approves the encroachment. In BUCKLEY V. VALEO, 424 U.S.
1, 118-137, 35 L. Ed. 2d 659, 96 S ct 612 (1976), for instance, the court held
that the Congress had infringed the President's appointment power, despite the
fact that the President himself had manifested his consent to the statute that
caused the infringement by signing it into law. See NATIONAL LEAGUE OF CITIES V.
USERY, 426 U.S., AT 842, N 12, 49 L. Ed. 2d 245, 96 S ct 2465...Congress cannot
be expanded by the 'consent' of the governmental unit whose domain is thereby
narrowed, whether that unit is the executive branch or the state's." (Id 154).
"State officials cannot consent to the enlargement of the powers of Congress
beyond those enumerated in the Constitution." (Id 154). (my emphasis added).
 

SUMMARY
When the United States Constitution was adopted, it was a new basic law of the land. Some people today consider it as the "Supreme Land Management Plan" (Cliff Gardner, Elko County Rancher/Historian, October 1, 1993).
 

The evidence is clear that the United States Constitution does not delegate any powers to Congress that allows Congress to grant to any federal agency legal claim to all public lands within Nevada's borders, except those pursuant to 1.8.17. Nor does Congress have any delegated power to grant power to the federal agencies to regulate private property on the public lands within Nevada's borders.

The Supreme Court of the United States holds that the federal government has no
right or power under the constitution to own, hold control of, or exercise any
complete municipal sovereignty over any land of any kind except - the District
of Columbia; land it had purchased within a state, with the consent of the state
legislature, for its own governmental uses, (forts, arsenals, dockyards and
other needful buildings) and over acquired territory before it is divided into
states. That is exactly what the Constitution says and that is what the Supreme Court said it means.
Some consider the case of NEW YORK V. UNITED STATES (1992) as the strongest
states rights case ever by the United States Supreme Court (Don Bowman,
Churchill County Businessman, October 27, 1993). The Supreme Court of the United
States held that Congress exercises its conferred powers subject to the
limitations contained in the Constitution, if the state ratifies or gives
consent to any authority which is not specifically granted by the United States
Constitution, it is null and void, state officials can not consent to the
enlargement of the powers of Congress beyond those enumerated in the
Constitution.
The United States Constitution is clear, NEVADA LAW IS CLEAR. Nevada owns all
the public lands in Nevada and all the minerals subject to existing rights, and
has complete jurisdiction and control of these lands. NRS 321.5973(1)
The Tonopah Resource Management Plan and Environmental Impact Statement and
Rangeland Reform '94 apply only to federal property in Nye County pursuant to
1.8.17 of the United States Constitution.
Again, if anyone can produce any evidence to the contrary, please bring your
evidence forward.
As I was born and raised in Smoky Valley, Nevada and as a Nye County
Commissioner, I strongly believe in the principals o,f multiple use which will
provide the greatest benefit to the people of Nye County, the State of Nevada,
and the United States. As a county commissioner, I believe in management of our
natural resources that is closest to the people and to the resources themselves.
This being with county government, as our founders of this great country
believed in when they settled America.
With the strong leadership in Nye County, we can address through our Nye County
Land Use Plan, all issues presently being managed by the federal agencies. With
the appointment of a Nye County Public Lands Commission, we can involve the
actual public land users as advisors to the Nye County Board of Commissioners.
 

Article 15, Section 2 of the Constitution of the State of Nevada required that I take the oath to support, protect and defend the Constitution and Government of the United States and the Constitution and Government of the State of Nevada.

The United States Constitution limits the land that the federal government can own and manage. The Nevada state law clearly establishes ownership of the public lands.

The supremacy clause of the United States Constitution makes Nevada law supreme in the absence of power granted to Congress by the United States Constitution.

 
My constituents are demanding that I fulfill my oath of office by making sure it is recognized that within the borders of the state
NEVADA OWNS ALL PUBLIC LANDS.
Richard L. Carver, Vice Chairman
Nye County Board of Commissioners
HCR 60, Box 5400
Round Mountain, NV 89045-9801
(702)377-2175
Cc:
The Honorable Harry Reid, U.S. Senator
The Honorable Richard Bryan, U.S. Senator
The Honorable Barbara Vucanovich, U.S. Representative
The Honorable James Bilbray, U.S. Representative
The Honorable Frankie Sue Del Papa, Nevada Attorney General
All Nevada Legislators
Mr. Dean Rhoads, Chrmn, NV Committee on Public Lands
Mr. John Marvel, Vice-Chrmn, NV Committee on Public Lands
Mr. Roy Neighbors, NV Committee on Public Lands
Mr. Mike McGinnis, NV Committee on Public Lands
Mr. Mark James, NV Committee on Public Lands
Mr. Jack Regan, NV Committee on Public Lands
Ms. Karen Hayes, NV Committee on Public Lands
Mr. John Crossley, Director, Legislative Council Bureau
Mr. Pete Morrow, NV Department of Natural Resources
Mr. Tom Ballow, Nevada Department of Agriculture
Mr. Russ Fields, Nevada Department of Minerals
Mr. Willie Molini, Nevada Department of Wildlife
Ms. Pamela Wilcox, Nevada Division of State Lands
Mr. James Currivan, BLM, Battle Mountain District Manager
Mr. Billy R. Templeton, BLI1, Nevada State Director
Mr. James Elliott, BLM, Carson City District Manager
Mr. Kenneth Walker, BLM, Ely District Manager
Mr. Rodney Harris, BLM, Elko District Manager
Mr. Ben Collins, BLM, Las Vegas District Manager
Mr. Theodore Angle, BLM, Tonopah Resource Area Manager
Mr. Wayne King, BLM, Shoshone Resource Area Manager
Mr. James Phillips, BLM, Lahontan Resource Area Manager
Mr. John Mattheissen, BLM, Walker Resource Area Manager
Mr. Runore Wycoff, BLM, Stateline Resource Area Manager
Mr. Gerald Smith, BLM, Schell Resource Area Manager
Mr. Gene Drais, BLM, Egan Resource Area Manager
Mr. R.M. "Jim" Nelson, Supervisor, Toiyabe National Forest
Mr. John Inman, Supervisor, Humboldt National Forest
Mr. David Grider, USFS, Tonopah District Ranger
Mr. Dayle Flanigan, USFS, Austin District Ranger
Mr. Guy Pence, USFS, Carson District Manager
Mr. Jim Tallerico, USFS, Las Vegas District Ranger
Mr. Jerry L. Green, USFS, Ely District Ranger
Mr. John S. Turner, Director, U.S. Fish & Wildlife Service
Mr. David Harlow, Nevada, US Fish & Wildlife Service
All Nevada County Commissioners
All Nevada County District Attorneys
Nevada Farm Bureau
Nevada Cattlemans Association
Nevada Sheep Growers Association
Nevada Mining Association
Nevada Miners & Prospectors Association
Nevada Association of Cities
Nevada League of Cities
C.A.R.E.E.


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