(REPRINTED WITH ADOPTED AMENDMENTS)
FIRST REPRINTA.B. 391
Assembly Bill No. 391–Committee on Constitutional Amendments
March 16, 2001
____________
Referred to Committee on Natural Resources, Agriculture, and Mining
SUMMARY—Makes various changes to provisions governing public lands. (BDR 26‑1455)
FISCAL NOTE: Effect on Local Government: Yes.
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EXPLANATION
– Matter in bolded italics is new; matter
between brackets [omitted material] is material to be omitted.
Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
1-1 Section 1. NRS 321.596 is hereby amended to read as follows:
1-2 321.596 The legislature finds that:
1-3 1. The State of Nevada has a strong moral claim upon the public land
1-4 retained by the Federal Government within Nevada’s borders because:
1-5 (a) On October 31, 1864, the Territory of Nevada was admitted to
1-6 statehood on the condition that it forever disclaim all right and title to
1-7 unappropriated public land within its boundaries;
1-8 (b) From 1850 to 1894, newly admitted states received 2 sections of
1-9 each township for the benefit of common schools, which in Nevada
1-10 amounted to 3.9 million acres;
1-11 (c) In 1880 Nevada agreed to exchange its 3.9-million-acre school grant
1-12 for 2 million acres of its own selection from public land in Nevada held by
1-13 the Federal Government;
1-14 (d) At the time the exchange was deemed necessary because of an
1-15 immediate need for public school revenues and because the majority of the
1-16 original federal land grant for common schools remained unsurveyed and
1-17 unsold;
1-18 (e) Unlike certain other states, such as New Mexico, Nevada received
1-19 no land grants from the Federal Government when Nevada was a territory;
1-20 (f) Nevada received no land grants for insane asylums, schools of
1-21 mines, schools for the blind and deaf and dumb, normal schools, miners’
1-22 hospitals or a governor’s residence as did states such as New Mexico; and
2-1 (g) Nevada thus received the least amount of land, 2,572,478 acres, and
2-2 the smallest percentage of its total area, 3.9 percent, of the land grant states
2-3 in the Far West admitted after 1864, while states of comparable location
2-4 and soil, namely Arizona, New Mexico and Utah, received approximately
2-5 11 percent of their total area in federal land grants.
2-6 2. The State of Nevada has a legal claim to the public land retained by
2-7 the Federal Government within Nevada’s borders because:
2-8 (a) In the case of the State of Alabama, a renunciation of any claim to
2-9 unappropriated lands similar to that contained in the ordinance adopted by
2-10 the Nevada constitutional convention was held by the Supreme Court of
2-11 the United States to be “void and inoperative” because it denied to
2-12 Alabama “an equal footing with the original states” in Pollard v. Hagan, 44
2-13 U.S. (3 How.) 212 (1845);
2-14 (b) In Coyle v. Smith, 221 U.S. 559 (1911), the Supreme Court of the
2-15 United States expressly affirmed the “equal footing” doctrine as
2-16 enunciated in Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845), holding
2-17 that to ensure equality among the states, the legislature of the State of
2-18 Oklahoma had the power to locate, change and appropriate money for its
2-19 own seat of government and that the Congress of the United States could
2-20 not, through the Enabling Act of June 16, 1906, ch. 3335, 34 Stat. 267,
2-21 require the State of Oklahoma to erect its seat of government in a
2-22 location designated by Congress;
2-23 (c) The State of Texas, when admitted to the Union in 1845, retained
2-24 ownership of all unappropriated land within its borders, setting a further
2-25 precedent which inured to the benefit of all states admitted later “on an
2-26 equal footing”; and
2-27 [(c)] (d) The Northwest Ordinance of 1787, adopted into the
2-28 Constitution of the United States by the reference of Article VI to prior
2-29 engagements of the Confederation, first proclaimed the “equal footing”
2-30 doctrine, and the Treaty of Guadalupe Hidalgo, by which the territory
2-31 including Nevada was acquired from Mexico and which is “the supreme
2-32 law of the land” by virtue of Article VI, affirms it expressly as to the new
2-33 states to be organized therein.
2-34 3. The exercise of broader control by the State of Nevada over the
2-35 public lands within its borders would be of great public benefit because:
2-36 (a) Federal holdings in the State of Nevada constitute 86.7 percent of
2-37 the area of the state, and in Esmeralda, Lincoln, Mineral, Nye and White
2-38 Pine counties the Federal Government controls from 97 to 99 percent of the
2-39 land;
2-40 (b) Federal jurisdiction over the public domain is shared among 17
2-41 federal agencies or departments which adds to problems of proper
2-42 management of land and disrupts the normal relationship between a state,
2-43 its residents and its property;
2-44 (c) None of the [federal] federally administered lands in Nevada are
2-45 taxable and Federal Government activities are extensive and create a tax
2-46 burden for the private property owners of Nevada who must meet the needs
2-47 of children of Federal Government employees, as well as provide other
2-48 public services;
3-1 (d) Under general land laws only 2.1 percent of [federal] federally
3-2 administered lands in Nevada have moved from federal control to private
3-3 ownership;
3-4 (e) Federal administration of the retained public lands, which are vital to
3-5 the livestock and mining industries of the state and essential to meet the
3-6 recreational and other various uses of its citizens, has been of uneven
3-7 quality and sometimes arbitrary and capricious; and
3-8 (f) Federal administration of the retained public lands has not been
3-9 consistent with the public interest of the people of Nevada because the
3-10 Federal Government has used those lands for armament and nuclear testing
3-11 thereby rendering many parts of the land unusable and unsuited for other
3-12 uses and endangering the public health and welfare.
3-13 4. The intent of the framers of the Constitution of the United States
3-14 was to guarantee to each of the states sovereignty over all matters within its
3-15 boundaries except for those powers specifically granted to the United
3-16 States as agent of the states.
3-17 5. The attempted imposition upon the State of Nevada by the Congress
3-18 of the United States of a requirement in the enabling act that Nevada
3-19 “disclaim all right and title to the unappropriated public lands lying within
3-20 said territory,” as a condition precedent to acceptance of Nevada into the
3-21 Union, was an act beyond the power of the Congress of the United States
3-22 and is thus void.
3-23 6. The purported right of ownership and control of the public lands
3-24 within the State of Nevada by the United States is without foundation and
3-25 violates the clear intent of the Constitution of the United States.
3-26 7. The exercise of such dominion and control of the public lands
3-27 within the State of Nevada by the United States works a severe, continuous
3-28 and debilitating hardship upon the people of the State of Nevada.
3-29 8. The State of Nevada, in enacting NRS 321.596 to 321.599,
3-30 inclusive, is acting as a sovereign state to enforce within its borders the
3-31 provisions of the Constitution of the United States. In so acting, it is
3-32 subject only to the original jurisdiction of the Supreme Court of the
3-33 United States.
3-34 Sec. 2. NRS 321.5963 is hereby amended to read as follows:
3-35 321.5963 As used in NRS 321.596 to 321.599, inclusive, unless the
3-36 context otherwise requires:
3-37 1. “Division” means the division of state lands of the state department
3-38 of conservation and natural resources.
3-39 2. “Public lands” means all lands within the exterior boundaries of the
3-40 State of Nevada , including lands managed or controlled by the Bureau
3-41 of Land Management, except lands:
3-42 (a) To which title is held by any private person or entity;
3-43 (b) To which title is held by the State of Nevada, any of its local
3-44 governments or the University and Community College System of Nevada;
3-45 (c) Which are located within congressionally authorized national parks,
3-46 monuments, national forests or wildlife refuges or which are lands acquired
3-47 by purchase consented to by the legislature;
3-48 (d) Which are lawfully controlled by the United States Department of
3-49 Defense, Department of Energy or Bureau of Reclamation; or
4-1 (e) Which are held in trust for Indian purposes or are Indian
4-2 reservations.
4-3 Sec. 3. NRS 321.597 is hereby amended to read as follows:
4-4 321.597 1. The division shall hold the public lands of the state in
4-5 trust for the benefit of the people of the state and shall manage them in an
4-6 orderly and beneficial manner consistent with the public policy declared in
4-7 NRS 321.5977.
4-8 2. [The] Except as otherwise provided in subsection 4 of NRS
4-9 321.5973, the state land registrar may , with the approval of the board of
4-10 review , adopt regulations necessary to manage the public lands in an
4-11 orderly and beneficial manner and to carry out the provisions of NRS
4-12 321.596 to 321.599, inclusive, and the public trust created in those
4-13 sections.
4-14 3. Except as otherwise provided in this subsection, the state land
4-15 registrar may contract for or employ such professional and clerical
4-16 personnel as are needed to carry out his functions. Any contract for
4-17 professional services must be approved by the state board of examiners and
4-18 any money necessary to compensate those persons must be approved for
4-19 expenditure by the legislature or the interim finance committee.
4-20 Sec. 4. NRS 321.5973 is hereby amended to read as follows:
4-21 321.5973 1. Subject to existing rights[,] and privileges, all public
4-22 lands in Nevada and all minerals not previously appropriated are the
4-23 property of the State of Nevada and subject to its jurisdiction and control.
4-24 2. Until equivalent measures are enacted by the State of Nevada, the
4-25 rights and privileges of the people of the State of Nevada under the
4-26 [National] Forest Reserve [Transfer Act (16 U.S.C. §§ 471 et seq.),] Acts,
4-27 16 U.S.C. §§ 471a et seq., the General Mining Laws , [(]30 U.S.C. §§ 21
4-28 et seq.[), the Homestead Act (43 U.S.C. §§ 161 et seq.),] , the Stock-
4-29 Raising Homestead Act, 43 U.S.C. §§ 299 and 301, the Taylor Grazing
4-30 Act , [(]43 U.S.C. §§ 315 et seq. , [),] the Desert Land Act , [(]43 U.S.C.
4-31 §§ 321 et seq. , [),] the Carey Act , [(] 43 U.S.C. §§ 641 et seq. [)] and the
4-32 Public Rangelands Improvement Act [(] of 1978, 43 U.S.C. §§ 1901 et seq.
4-33 , [)] and all rights of way and easements for public utilities must be
4-34 preserved under administration by the state.
4-35 3. Public lands in Nevada which have been administered by the United
4-36 States under international treaties or interstate compacts must continue to
4-37 be administered by the state in conformance with those treaties or
4-38 compacts.
4-39 4. The board of county commissioners of each county may adopt
4-40 such ordinances as are necessary to carry out the provisions of NRS
4-41 321.596 to 321.599, inclusive, concerning the public lands within the
4-42 boundaries of the county.
4-43 Sec. 5. NRS 321.599 is hereby amended to read as follows:
4-44 321.599 The attorney general may initiate an action or defend [any]
4-45 an action commenced in any court to carry out or enforce the provisions of
4-46 NRS 321.596 to 321.599, inclusive, or seek [any] appropriate judicial relief
4-47 to protect the interests of the state or the people of the state in the public
4-48 lands. [The right to enforce the provisions of NRS 321.596 to 321.599,
4-49 inclusive, vests exclusively in] If the attorney general[.] refuses to initiate
5-1 or defend such an action, the district attorney of the county in which the
5-2 public lands are located may do so to protect the interests of the county
5-3 or the residents of the county in those public lands.
5-4 Sec. 6. NRS 328.500 is hereby amended to read as follows:
5-5 328.500 1. The legislature finds that more than 87 percent of the land
5-6 in the State of Nevada is held by the Federal Government, of which 69
5-7 percent is public land, and the actions of federal agencies and
5-8 instrumentalities involving the public lands and waters appurtenant to and
5-9 public roads over those lands significantly affect the health, safety, welfare
5-10 and happiness of the citizens of this state and may interfere with the
5-11 traditional sovereign functions of the State of Nevada with respect to those
5-12 lands, waters and roads and their uses.
5-13 2. Except as otherwise provided in subsection 3, the attorney general
5-14 may:
5-15 (a) On his own initiative or at the request of the governor or any state
5-16 agency, bring and maintain any action; or
5-17 (b) Intervene on behalf of or bring and maintain an action on the
5-18 relation of, any person in any meritorious case,
5-19 in any court or before any federal agency if any action or proposed action
5-20 by a federal agency or instrumentality with respect to the public lands or
5-21 waters appurtenant to or public roads over those lands impairs or tends to
5-22 impair the sovereignty of the State of Nevada.
5-23 3. The attorney general may bring an action pursuant to this section if:
5-24 (a) The legislature has appropriated sufficient money for the operation
5-25 of his office to permit him to bring and maintain the action until its
5-26 conclusion; or
5-27 (b) He has obtained the permission:
5-28 (1) From the legislature, if it is in session, expressed by a concurrent
5-29 resolution; or
5-30 (2) If the legislature is not in session, from the interim finance
5-31 committee.
5-32 4. As used in this section, “public lands” means all lands within the
5-33 exterior boundaries of the State of Nevada , including lands managed or
5-34 controlled by the Bureau of Land Management, except lands:
5-35 (a) To which title is held by any private person or entity;
5-36 (b) To which title is held by the State of Nevada, any of its local
5-37 governments or the University and Community College System of Nevada;
5-38 (c) Which are located within congressionally authorized national parks,
5-39 monuments, national forests or wildlife refuges or which are lands acquired
5-40 by purchase consented to by the legislature;
5-41 (d) Which are controlled by the United States Department of Defense,
5-42 Department of Energy or Bureau of Reclamation; or
5-43 (e) Which are held in trust for Indian purposes or are Indian
5-44 reservations.
5-45 Sec. 7. This act becomes effective upon passage and approval.
5-46 H