Assembly Bill No. 149

Assembly Bill No. 149-Committee on Natural Resources,
Agriculture and Mining

(On Behalf of Elko County)

February 6, 1997
____________

Referred to Committee on Natural Resources, Agriculture and Mining

SUMMARY--Makes various changes to provisions relating to public lands. (BDR 26-669)

FISCAL NOTE: Effect on Local Government: Yes.

Effect on the State or on Industrial Insurance: No.

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

AN ACT relating to public lands; providing a civil remedy and a criminal penalty for performing certain acts without the authorization of the state land registrar; abolishing the board of review; requiring counties to adopt certain regulations concerning public lands within their boundaries; requiring the state land registrar to convey certain public lands to counties; authorizing district attorneys to enforce certain provisions relating to the management of public lands; revising the designation, membership, compensation and duties of the land use planning advisory council; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

~^
Section 1 Chapter 321 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 and 3 of this act.
Sec. 2. Any person acting outside the scope of his specific authority lawfully delegated, who performs any act with respect to the use, management or disposal of any of the public lands without obtaining authorization or confirmation from the state land registrar as required by subsection 2 of NRS 321.5983, is guilty of a gross misdemeanor.
Sec. 3. A person who is aggrieved by a violation of section 2 of this act may commence a civil action against the violator to recover damages suffered as a proximate result of the violation and is entitled to recover $20,000 or treble the amount of his actual damages, whichever is greater, plus his costs and reasonable attorney's fees.
Sec. 4. NRS 321.596 is hereby amended to read as follows:
321.596 The legislature finds that:
1. The State of Nevada has a strong moral claim upon the public land retained by the Federal Government within Nevada's borders because:
(a) On October 31, 1864, the Territory of Nevada was admitted to statehood on the condition that it forever disclaim all right and title to unappropriated public land within its boundaries;
(b) From 1850 to 1894, newly admitted states received 2 sections of each township for the benefit of common schools, which in Nevada amounted to 3.9 million acres;
(c) In 1880 Nevada agreed to exchange its 3.9-million-acre school grant for 2 million acres of its own selection from public land in Nevada held by the Federal Government;
(d) At the time the exchange was deemed necessary because of an immediate need for public school revenues and because the majority of the original federal land grant for common schools remained unsurveyed and unsold;
(e) Unlike certain other states, such as New Mexico, Nevada received no land grants from the Federal Government when Nevada was a territory;
(f) Nevada received no land grants for insane asylums, schools of mines, schools for the blind and deaf and dumb, normal schools, miners' hospitals or a governor's residence as did states such as New Mexico; and
(g) Nevada thus received the least amount of land, 2,572,478 acres, and the smallest percentage of its total area, 3.9 percent, of the land grant states in the Far West admitted after 1864, while states of comparable location and soil, namely Arizona, New Mexico and Utah, received approximately 11 percent of their total area in federal land grants.
2. The State of Nevada has a legal claim to the public land retained by the Federal Government within Nevada's borders because:
(a) In the case of the State of Alabama, a renunciation of any claim to unappropriated lands similar to that contained in the ordinance adopted by the Nevada constitutional convention was held by the Supreme Court of the United States to be "void and inoperative" because it denied to Alabama "an equal footing with the original states" in Pollard v. Hagan, 44 U.S.(3 How.) 212 (1845);
(b) In Coyle v. Oklahoma, 221 U.S. 559 (1911), the Supreme Court of the United States expressly affirmed the "equal footing" doctrine as enunciated in Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845), by holding that, to ensure equality among the states, the legislature of the State of Oklahoma had the power to locate, change and appropriate money for its own seat of government and that the Congress of the United States could not, through the Enabling Act of June 16, 1906, 34 Stat. 267, c. 3335, require the State of Oklahoma to erect its seat of government in a location designated by Congress;
(c) The State of Texas, when admitted to the Union in 1845, retained ownership of all unappropriated land within its borders, setting a further precedent which inured to the benefit of all states admitted later "on an equal footing"; and
[(c)] (d) The Northwest Ordinance of 1787, adopted into the Constitution of the United States by the reference of Article VI to prior engagements of the Confederation, first proclaimed the "equal footing" doctrine, and the Treaty of Guadalupe Hidalgo, by which the territory including Nevada was acquired from Mexico and which is "the supreme law of the land" by virtue of Article VI, affirms it expressly as to the new states to be organized therein.
3. The exercise of broader control by the State of Nevada over the public lands within its borders would be of great public benefit because:
(a) Federal holdings in the State of Nevada constitute 86.7 percent of the area of the state, and in Esmeralda, Lincoln, Mineral, Nye and White Pine counties the Federal Government controls from 97 to 99 percent of the land;
(b) Federal jurisdiction over the public domain is shared among 17 federal agencies or departments which adds to problems of proper management of land and disrupts the normal relationship between a state, its residents and its property;
(c) None of the [federal] federally administered lands in Nevada are taxable and Federal Government activities are extensive and create a tax burden for the private property owners of Nevada who must meet the needs of children of Federal Government employees, as well as provide other public services;
(d) Under general land laws only 2.1 percent of federal lands in Nevada have moved from federal control to private ownership;
(e) Federal administration of the retained public lands, which are vital to the livestock and mining industries of the state and essential to meet the recreational and other various uses of its citizens, has been of uneven quality and sometimes arbitrary and capricious; and
(f) Federal administration of the retained public lands has not been consistent with the public interest of the people of Nevada because the Federal Government has used those lands for armament and nuclear testing thereby rendering many parts of the land unusable and unsuited for other uses and endangering the public health and welfare.
4. 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 states.
5. The attempted imposition upon the State of Nevada by the Congress of the United States of a requirement in the enabling act that Nevada "disclaim all right and title to the unappropriated public lands lying within said territory," as a condition precedent to acceptance of Nevada into the Union, was an act beyond the power of the Congress of the United States and is thus void.
6. The purported right of ownership and control of the public lands within the State of Nevada by the United States is without foundation and violates the clear intent of the Constitution of the United States.
7. The exercise of such dominion and control of the public lands within the State of Nevada by the United States works a severe, continuous and debilitating hardship upon the people of the State of Nevada.
8. The State of Nevada, in enacting NRS 321.596 to 321.599, inclusive, and sections 2 and 3 of this act, is acting as a sovereign state to enforce within its borders the provisions of the Constitution of the United States. In so acting, it is subject only to the original jurisdiction of the Supreme Court of the United States.
Sec. 5. NRS 321.5963 is hereby amended to read as follows:
321.5963 As used in NRS 321.596 to 321.599, inclusive, and sections 2 and 3 of this act, unless the context otherwise requires:
1. "Division" means the division of state lands of the state department of conservation and natural resources.
2. "Public lands" means all lands within the exterior boundaries of the State of Nevada except lands:
(a) To which title is held by any private person or entity;
(b) To which title is held by the State of Nevada, any of its local governments or the University and Community College System of Nevada;
(c) Which are [located within congressionally authorized national parks, monuments, national forests or wildlife refuges] lawfully administered by the Federal Government or which are lands acquired by purchase consented to by the legislature;
(d) Which are lawfully controlled by the United States Department of Defense, Department of Energy or [Bureau of Reclamation;] Department of the Interior; or
(e) Which are held in trust for Indian purposes or are Indian reservations.
Sec. 6. NRS 321.5967 is hereby amended to read as follows:
321.5967 [1. There is hereby created a board of review composed of:
(a) The director of the state department of conservation and natural resources;
(b) The administrator of the division of environmental protection of the state department of conservation and natural resources;
(c) The administrator of the division of minerals of the department of business and industry;
(d) The administrator of the division of state parks of the state department of conservation and natural resources;
(e) The state engineer;
(f) The state forester firewarden;
(g) The chairman of the state environmental commission;
(h) The administrator of the division of agriculture of the department of business and industry;
(i) The chairman of the board of wildlife commissioners; and
(j) The administrator of the office of historic preservation of the department of museums, library and arts.
2. The chairman of the state environmental commission shall serve as chairman of the board.
3. The board shall meet at such times and places as are specified by a call of the chairman. Six members of the board constitute a quorum. The affirmative vote of a majority of the board members present is sufficient for any action of the board.
4. Except as otherwise provided in this subsection, the members of the board serve without compensation. The chairman of the state environmental commission and the chairman of the board of wildlife commissioners are entitled to receive a salary of not more than $80, as fixed by the board, for each day's attendance at a meeting of the board.
5. While engaged in the business of the board, each member and employee of the board is entitled to receive the per diem allowance and travel expenses provided for state officers and employees generally.
6. The board:
(a)] In addition to any other duties assigned to it by law, the land use planning council created pursuant to NRS 321.740:
1. Shall review and approve or disapprove all regulations proposed by the state land registrar pursuant to NRS 321.597.
[(b)] 2. May review any decision of the state land registrar made pursuant to NRS 321.596 to 321.599, inclusive, if an appeal is taken pursuant to NRS 321.5987, and affirm, modify or reverse the decision.
[(c)] 3. Shall review any plan or statement of policy concerning the use of lands in Nevada under federal management which is submitted by the state land use planning agency.
Sec. 7. NRS 321.597 is hereby amended to read as follows:
321.597 1. The division shall hold the public lands of the state in trust for the benefit of the people of the state and shall manage them in an orderly and beneficial manner consistent with the public policy declared in NRS 321.5977.
2. [The] Except as otherwise provided in subsection 3 of NRS 321.5973, the state land registrar may , with the approval of the [board of review] land use planning council, adopt regulations necessary to manage the public lands in an orderly and beneficial manner and to carry out the provisions of NRS 321.596 to 321.599, inclusive, and the public trust created in those sections.
3. Except as otherwise provided in this subsection, the state land registrar may contract for or employ such professional and clerical personnel as are needed to carry out his functions. Any contract for professional services must be approved by the state board of examiners and any money necessary to compensate those persons must be approved for expenditure by the legislature or the interim finance committee.
Sec. 8. NRS 321.5973 is hereby amended to read as follows:
321.5973 1. Subject to existing rights [,] and privileges, 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 Desert Land Act (43 U.S.C. §§ 321 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.
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.
4. The board of county commissioners of each county:
(a) Shall adopt such ordinances as are necessary to carry out the provisions of NRS 321.596 to 321.599, inclusive, concerning the public lands within the boundaries of its county; and
(b) May by ordinance impose a fee for the use of public lands within the boundaries of its county as recommended by the land use planning council. The ordinance must not adversely affect any existing rights and privileges.
5. As used in this section, "existing rights and privileges" means the rights and privileges which have been established and recognized by the laws, customs and judicial decisions of this state, including, but not limited to:
(a) Rights of way for roads, trails, ditches, flumes, pipelines and utilities; and
(b) Prospecting and mineral rights, grazing rights or privileges, the right to use land for recreational purposes, the right to harvest wild fruits free of charge and the rights of residents of this state to use wood, stone, gravel and clay free of charge if the wood, stone, gravel and clay is not sold commercially.
Sec. 9. NRS 321.598 is hereby amended to read as follows:
321.598 1. Except as otherwise provided in [subsection 2,] subsections 2 and 3, no sale, conveyance or other disposal of the public lands may be permitted or authorized by the state land registrar, unless specifically authorized by an act of the legislature enacted after July 1, 1979.
2. To the extent that the public lands may be conveyed, leased, permitted, or licensed by the Federal Government or any of its agencies, the state land registrar [is hereby authorized to] may convey, lease, license or permit the use of public lands to the same extent or in the same manner as those lands are conveyed, leased, licensed or permitted to be used by the Federal Government or any of its agencies.
3. The board of county commissioners of a county in which public lands are located may, for any public purpose of the county or any incorporated city or unincorporated town within the county, select any portion of the public lands located within the county that it wishes to acquire and notify the state land registrar in writing of its selection. Upon receipt of the notification, the state land registrar shall convey to the county all right, title and interest of the State of Nevada in and to that portion of the public lands selected.
4. All proceeds of fees, rents, royalties or other money paid to the state under NRS 321.596 to 321.599, inclusive, must be deposited with the state treasurer for credit to the state general fund.
Sec. 10. NRS 321.5987 is hereby amended to read as follows:
321.5987 1. Any person who is aggrieved by a decision of the state land registrar made pursuant to NRS 321.596 to 321.599, inclusive, may appeal by letter to the [board of review] land use planning council within 30 days after the date of the decision from which the appeal is taken. The letter must set out:
(a) The decision from which the appeal is taken;
(b) Legal grounds for the contention of the appellant that the decision exceeds the authority of the state land registrar; and
(c) Facts to support the contention,
with sufficient particularity to permit the state land registrar to prepare for a hearing.
2. Upon receiving the letter, the [board] council may:
(a) Dismiss the appeal if it appears from the letter to lack any merit; or
(b) Set a date for a hearing of the appeal which must be not less than 15 days nor more than 45 days after the date on which the [board] council receives the letter. The [board] council shall notify the state land registrar and the appellant of the date, time and place of the hearing.
3. Any hearing held by the [board] council must be informal.
4. The state land registrar or his representative shall present at the hearing the facts considered in reaching his decision. The appellant or his representative may present matters in support of his contention that the state land registrar's decision exceeds his authority.
5. If the appellant does not appear in person or by representative, the [board] council may consider the matters set forth in his letter of appeal and may dismiss the appeal or take any other action which it finds to be reasonable and proper.
6. The [board] council shall issue its order as soon as practicable after conducting the hearing. The order of the [board] council is a final decision in a contested case.
Sec. 11. NRS 321.599 is hereby amended to read as follows:
321.599 The attorney general may initiate or defend any action commenced in any court to carry out or enforce the provisions of NRS 321.596 to 321.599, inclusive, or seek any appropriate judicial relief to protect the interests of the state or the people of the state in the public lands. [The right to enforce the provisions of NRS 321.596 to 321.599, inclusive, vests exclusively in the attorney general.] If the attorney general refuses to initiate or defend such an action, the district attorney of the appropriate county may do so.
Sec. 12. NRS 321.7355 is hereby amended to read as follows:
321.7355 1. The state land use planning agency shall prepare, in cooperation with appropriate state agencies and local governments throughout the state, plans or policy statements concerning the acquisition and use of lands in Nevada which are under federal management.
2. The state land use planning agency shall, in preparing the plans and policy statements, identify lands which are suitable for acquisition for:
(a) Commercial, industrial or residential development;
(b) The expansion of the property tax base, including the potential for an increase in revenue by the lease and sale of those lands; or
(c) Accommodating increases in the population of this state.
The plans or policy statements must not include matters concerning zoning or the division of land and must be consistent with local plans and regulations concerning the use of private property.
3. The state land use planning agency shall encourage public comment upon the various matters treated in a proposed plan or policy statement throughout its preparation and shall submit its work on a plan or statement of policy periodically for review and comment by the land use planning [advisory] council, the advisory board on natural resources and any committees of the legislature or subcommittees of the legislative commission which deal with matters concerning the public lands.
4. A plan or statement of policy must be approved by the governing bodies of the county and cities affected by it, and by the governor, before it is put into effect.
Sec. 13. NRS 321.740 is hereby amended to read as follows:
321.740 1. The land use planning [advisory] council, consisting of 17 members appointed by the [governor,] board of county commissioners of each county, is hereby created.
2. The [governor] board of county commissioners of each county shall appoint [members who are elected officials or representatives of local political subdivisions,] one member [from each county.
3. Members are] to represent its county on the council. A member so appointed may not be an elected officer.
3. The members of the council shall elect a chairman. After the initial election, the chairman shall hold office for a term of 2 years commencing on July 1 of each odd-numbered year. If a vacancy occurs in the chairmanship, the members of the council shall elect a replacement for the remainder of the unexpired term.
4. The council shall meet at such times and places as are specified by a call of the chairman. Ten members of the council constitute a quorum. The affirmative vote of a majority of the members present is sufficient for any action of the council.
5. The members of the council are entitled to receive a salary of not more than $80, as fixed by the council, for each day or portion of a day of attendance at a meeting of the council.
6. While engaged in the business of the council, each member and employee of the council is entitled to receive the travel expenses and subsistence allowances provided [by law for their positions from the local political subdivisions.] for state officers and employees generally.
Sec. 14. NRS 321.750 is hereby amended to read as follows:
321.750 The land use planning [advisory] council shall advise the administrator on the development and distribution to cities and counties of information useful to land use planning.
Sec. 15. NRS 321.755 is hereby amended to read as follows:
321.755 1. The executive council of the land use planning [advisory] council is hereby created to consider and make recommendations for land use planning in areas of critical environmental concern and to resolve inconsistencies between the land use plans of local government entities.
2. The executive council consists of the administrator and four persons selected by the land use planning [advisory] council from among its members. Each member of the executive council shall serve for 2-year terms.
Sec. 16. NRS 321.761 is hereby amended to read as follows:
321.761 1. If an inconsistency in land use plans develops between two or more adjacent or overlapping local government entities which cannot be resolved between them, one or more of them may request the state land use planning agency to study and assist in resolving the inconsistency.
2. Upon receipt of such a request the administrator shall convene a meeting of all the affected entities and shall provide technical assistance and advice in resolving the inconsistency.
3. If, after subsequent meetings over a reasonable period [of time] as determined by the administrator, the affected entities cannot resolve the inconsistency, the matter [shall] must be submitted to the executive council of the land use planning [advisory] council for a decision.
Sec. 17. NRS 321.770 is hereby amended to read as follows:
321.770 1. The state land use planning agency shall provide assistance in land use planning for areas of critical environmental concern:
(a) When the governor directs that the agency review and assist in land use planning for an area he finds to be of critical environmental concern.
(b) When one or more local government entities request that the agency advise and assist in land use planning for an area which affects them and which they consider to be of critical environmental concern.
2. Upon receipt of a directive or a request pursuant to subsection 1, the administrator shall study the problems of the area described and meet with the affected local government entities to receive their initial comments and recommendations. He shall then submit the matter of planning for the area of critical environmental concern to the executive council of the land use planning [advisory] council for consideration and recommendation.
3. The executive council shall include in its procedures one or more public hearings upon notice given by at least one publication at least 20 days before the hearing in a newspaper or combination of newspapers having general circulation throughout the area affected and each city and county any portion of whose territory lies within [such] that area. The notice [shall] must state with particularity the subject of the hearing.
4. Following completion of the hearings and consideration of other information, the executive council shall make its final recommendations for land use planning policies in the area of critical environmental concern. The recommendations may include proposed land use regulations to carry out [such] the policies.
5. No land use regulation adopted by the executive council pursuant to this section may become effective without the approval of the governor.
Sec. 18. NRS 328.500 is hereby amended to read as follows:
328.500 1. The legislature finds that more than 87 percent of the land in the State of Nevada is [held by the Federal Government, of which 69 percent is] public land, and the actions of federal agencies and instrumentalities involving the public lands and waters appurtenant to and public roads over those lands significantly affect the health, safety, welfare and happiness of the citizens of this state and may interfere with the traditional sovereign functions of the State of Nevada with respect to those lands, waters and roads and their uses.
2. Except as otherwise provided in subsection 3, the attorney general may:
(a) On his own initiative or at the request of the governor or any state agency, bring and maintain any action; or
(b) Intervene on behalf of or bring and maintain an action on the relation of, any person in any meritorious case,
in any court or before any federal agency if any action or proposed action by a federal agency or instrumentality with respect to the public lands or waters appurtenant to or public roads over those lands impairs or tends to impair the sovereignty of the State of Nevada.
3. The attorney general may bring an action pursuant to this section if:
(a) The legislature has appropriated sufficient money for the operation of his office to permit him to bring and maintain the action until its conclusion; or
(b) He has obtained the permission:
(1) From the legislature, if it is in session, expressed by a concurrent resolution; or
(2) If the legislature is not in session, from the interim finance committee.
4. As used in this section, "public lands" means all lands within the exterior boundaries of the State of Nevada except lands:
(a) To which title is held by any private person or entity;
(b) To which title is held by the State of Nevada, any of its local governments or the University and Community College System of Nevada;
(c) Which are located within congressionally authorized national parks, monuments, national forests or wildlife refuges or which are lands acquired by purchase consented to by the legislature;
(d) Which are controlled by the United States Department of Defense, Department of Energy or Bureau of Reclamation; or
(e) Which are held in trust for Indian purposes or are Indian reservations.
Sec. 19. The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
Sec. 20. The amendatory provisions of section 1 of this act do not apply to offenses that are committed before the effective date of this act.
Sec. 21. This act becomes effective upon passage and approval.