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United States v. Gardner

ELR Citation: 27 ELR 20603
Nos. No. 95-17042, 107 F.3d 1314/(9th Cir., 02/25/1997) Aff'd

The court affirms a district court decision ordering two Nevada ranchers to pay a fee for grazing their livestock on Humboldt National Forest land without a permit and enjoining further unauthorized grazing. The court rejects the ranchers' argument that they did not trespass on federal forest land because the federal government does not have title to public land in Nevada. The United States has held title to the unappropriated public lands in Nevada since Mexico ceded the land to the United States in 1848. The federal government did not merely hold the land in trust for the creation of future states. And under the Property Clause of the U.S. Constitution, the United States can administer its land in any way it chooses, including the establishment of a national forest reserve.

The court then holds that the equal footing doctrine does not operate to give Nevada title to the public land within its boundaries. The court rejects the ranchers' argument that because the federal government owns over 80 percent of the land in Nevada, the state is not on an equal footing with the original 13 states. The equal footing doctrine reserves the shores of and land beneath navigable waters to the states. It does not apply to fast dry land. Further, the purpose of the equal footing doctrine is to establish equality among the states regarding political rights and sovereignty, not to eradicate all economic or physical distinctions between the states. The court next holds that an 1864 congressional mandate requiring Nevada to disclaim all rights to unappropriated public lands within its borders in order to join the Union is not unconstitutional. While the disclaimer is declaratory, the United States did not need the disclaimer clause to gain title to the public lands because it already had title to those lands through its treaty with Mexico. The disclaimer clause was merely a recognition of the preexisting U.S. title, as opposed to a grant of title from Nevada to the United States. The court further holds that federal ownership of the public lands in Nevada is not unconstitutional under the Tenth Amendment. The state is not being unconstitutionally deprived of the ability to govern the land within its borders. It may exercise civil and criminal jurisdiction over federal lands as long as it exercises its power in a manner that does not conflict with federal law.

[The district court's opinion is published at 26 ELR 20670.]

Counsel for Plaintiff
Glade L. Hall
105 Mt. Rose St., Reno NV 89509
(702) 324-6447

Counsel for Defendants
Albert M. Ferlo Jr.
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Choy, Reavley,* and Leavy, JJ.