Replies

The ‘legislative findings’ don’t have much legal validity. For example, they cite Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845). That case dealt with “The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively, and the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States.”

That has nothing to do with public land in Nevada that the state Constitution specifically agreed did NOT belong to the state of Nevada.

This analysis is probably more accurate, and is almost certain to prevail in court:

“II. The Equal Footing Doctrine
19

Gardners argue that, under the Equal Footing Doctrine, a new state must possess the same powers of sovereignty and jurisdiction as did the original thirteen states upon admission to the Union. Because the federal government owns over eighty percent of the land in the state of Nevada, Gardners argue, Nevada is not on an equal footing with the original thirteen states.3 Gardners claim that Nevada must have “paramount title and eminent domain of all lands within its boundaries” to satisfy the Equal Footing Doctrine.
20

The meaning of the Equal Footing Doctrine is discussed in Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845). In that case, the Supreme Court held that the shores of and land beneath navigable waters were reserved to the states, and were not granted by the Constitution to the federal government. Id. 44 U.S. (3 How.) at 229. New states, the Court reasoned, have the same “rights, sovereignty, and jurisdiction” over the shores of and land beneath navigable waters as do the original states. Id.4
21

However, the Supreme Court has declined to extend the Equal Footing Doctrine to lands other than those underneath navigable waters or waters affected by the ebb and flow of the tides. In Scott v. Lattig, 227 U.S. 229, 244, 33 S.Ct. 242, 244, 57 L.Ed. 490 (1913), the Supreme Court held that title to an island within a stream did not pass to the state of Idaho, but instead was retained by the United States. The Court stated that because the island “was not part of the bed of the stream or land under the water ... its ownership did not pass to the State or come within the disposing influence of its laws.” Id. The Court went on to note that the island was “fast dry land, and therefore remained the property of the United States and subject to disposal under its laws....” Id. Sixty years later, the Supreme Court characterized its decision in Scott as holding that the rule in Pollard’s Lessee “does not reach islands or fast lands located within such waters. Title to islands remains in the United States, unless expressly granted along with the stream bed or otherwise.” Texas v. Louisiana, 410 U.S. 702, 713, 93 S.Ct. 1215, 1221, 35 L.Ed.2d 646 (1973). The Equal Footing Doctrine, then, does not operate to reserve title to fast dry lands to individual states.
22

Moreover, Supreme Court has long held that the Equal Footing Doctrine refers to “those attributes essential to [a state’s] equality in dignity and power with other States.” Coyle v. Smith, 221 U.S. 559, 568, 31 S.Ct. 688, 690, 55 L.Ed. 853 (1911). The Court has noted that a new state enters the Union “in full equality with all the others,” and that this equality may forbid a compact between a new state and the United States “limiting or qualifying political rights and obligations.” Stearns v. Minnesota, 179 U.S. 223, 245, 21 S.Ct. 73, 81, 45 L.Ed. 162 (1900). However, “a mere agreement in reference to property involves no question of equality of status.” Id. The Court has observed that “[s]ome States when they entered the Union had within their boundaries tracts of land belonging to the Federal Government; others were sovereigns of their soil.” United States v. Texas, 339 U.S. 707, 716, 70 S.Ct. 918, 922, 94 L.Ed. 1221 (1950). While these disparities may cause economic differences between the states, the purpose of the Equal Footing Doctrine is not to eradicate all diversity among states but rather to establish equality among the states with regards to political standing and sovereignty. Id.
23

The Equal Footing Doctrine, then, applies to political rights and sovereignty, not to economic or physical characteristics of the states. Moreover, the Equal Footing Doctrine applies primarily to the shores of and lands beneath navigable waters, not to fast dry lands. Therefore, the Equal Footing Doctrine would not operate, as Gardners argue, to give Nevada title to the public lands within its boundaries.
24

III. The Validity of Nevada’s “Disclaimer Clause”
25

When Congress invited Nevada to join the Union in 1864, it mandated that the Nevada constitutional convention pass an act promising that Nevada would “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....” Nevada Statehood Act of March 21, 1864, 13 Stat. 30, 31 § 4. The state constitutional convention did so. Ordinance of the Nevada Constitution.5
26

Gardners claim that this clause is invalid and unconstitutional as an attempt to divest Nevada of its title to the unappropriated lands within its boundaries. Gardners cite to Van Brocklin v. Tennessee, 117 U.S. 151, 167, 6 S.Ct. 670, 679, 29 L.Ed. 845 (1886) for the premise that such disclaimer clauses “are but declaratory, and confer no new right or power upon the United States.” Therefore, Gardners argue, Nevada could not have given the United States title to the public lands within its boundaries through the disclaimer clause.
27

Gardners are correct in their argument that the disclaimer is declaratory. However, the United States did not need the disclaimer clause to gain title to the public lands in Nevada. The United States already had title to those lands through the Treaty of Guadalupe Hidalgo, and the disclaimer clause was merely a recognition of the preexisting United States title, as opposed to a grant of title from Nevada to the United States.
28

As aforementioned, Congress’ power under the Property Clause to administer its own property is virtually unlimited. See, e.g., Kleppe, 426 U.S. at 539, 96 S.Ct. at 2291-92. Indeed, the United States retains title to the public lands within states such as Nevada not due to “any agreement or compact with the proposed new State,” but rather “solely because the power of Congress extend[s] to the subject.” Coyle, 221 U.S. at 574, 31 S.Ct. at 693. The disclaimer clause, then, is declaratory of the right already held by the United States under the Constitution to administer its property, and as such is valid under the United States Constitution. Van Brocklin, 117 U.S. at 167, 6 S.Ct. at 679.

IV. The Tenth Amendment
29

Gardners argue that federal ownership of the public lands in Nevada is unconstitutional under the Tenth Amendment. Such ownership, they argue, invades “core state powers reserved to Nevada,” such as the police power.6
30

Federal ownership of the public lands within a state does not completely divest the state from the ability to exercise its own sovereignty over that land. The state government and the federal government exercise concurrent jurisdiction over the land. In Kleppe v. New Mexico, the Supreme Court held that the Wild Free-roaming Horses and Burros Act was not an impermissible intrusion on the sovereignty of New Mexico. 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976). In so doing, the Court noted:
31

Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. [citations omitted] And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.
32

Id. at 543, 96 S.Ct. at 2293 (emphasis added). Indeed, a state may enforce its criminal and civil laws on federal land “so long as those laws do not conflict with federal law.” California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 580, 107 S.Ct. 1419, 1425, 94 L.Ed.2d 577. The state of Nevada, then, is not being unconstitutionally deprived of the ability to govern the land within its borders. The state may exercise its civil and criminal jurisdiction over federal lands within its borders as long as it exercises its power in a manner that does not conflict with federal law.
33

V. Guarantee Clause, Equal Protection, and Political Accountability Claims
34

Gardners argue that the retention by the United States of the unappropriated public lands within the state of Nevada violates the Guarantee Clause of the United States Constitution. Gardners also contend that federal ownership of the public lands in Nevada denies them equal protection of the laws under the Fifth Amendment and fails the “political accountability test.” As it does not appear that these issues were raised before the district court, this court will not consider them. See, e.g., Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) (”It is the general rule ... that a federal appellate court does not consider an issue not passed upon below.”).

Conclusion
35

We AFFIRM the judgment of the district court.”

http://openjurist.org/107/f3d/1314/united-states-v-gardner