Posted on 02/15/2002 3:02:57 AM PST by brityank
9th Circuit Appeals Court Hears Cliff Gardener Case
Sierra Times : 02.15.02SAN FRANSICO - The U.S. 9th Circuit Court of Appeals heard oral arguments from Ruby Valley rancher Cliff Gardner Tuesday, as well as assistant US attorney(s) representing the Forest Service. Gardner has been in a running battle with the forest service over grazing and water rights that have been a part of the family ranch since before the turn of the century.
"I was very gratified that the ninth circuit granted me oral argument, they must have taken another look at our defense strategy. It has implications for the whole west, private property rights and constitutional rights, as well as the separation of power doctrine," said Gardner.
In a heavily marbled, mosaic dappled, and deeply carved hearing room, a three judge panel consisting of presiding Judge Michael Daly Hawkins (Phoenix, AZ), John T. Noonan Jr. (San Francisco, CA), and Dorothy W. Nelson (Pasadena, CA), perked up their ears to hear the testimony. In a non-planned, but effective maneuver, Gardner, received 99% of the time in front of the judges. Attorney for the United States from Reno, Brian Sullivan, Esq. sat with clinched fists having forfeited his ability to rebut Gardner.
Gardner’s argument had two points: 1) defense of his constitutional rights as a citizen of Nevada, and 2) what jurisdiction was he is charged under, Article IV territorial jurisdiction or Article III constitutional jurisdiction. Gardner case has been that in an Article IV territorial court, constitutional rights are forfeited because theoretically statehood has not occurred. Therefore, agencies such as the Forest Service and Bureau of Land Management have power without limitation under Article IV; constitutional protections are not guaranteed.
Judge Noonan complimented Gardner for bringing forth such "a novel and creative defense" to which Gardner replied the courts themselves had produced this paradoxical question, so it had to be brought. He pointed out that at some point the court would have to address this issue. To this judge Hawkins said, "I guess someone has to be first and I guess you’re it (Gardner)."
Gardner in wrapping up his statements reminded the judges that in the original intent of the US Constitution the framers never intended for the federal government to own or control vast amounts of land with in admitted state’s borders because they would be "awed into undue obedience", said Gardner. Gardner then testified that Nevada, his home state, was now approaching 90% federal ownership or control and his neighbors were intimidated by the federal land managers.
Supported at the bar by his wife Bertha, members of his family, several members of the Nevada Committee for Full Statehood and the Nevada Live Stock Association, Gardner defended himself. "I was very happy with the judges questions and the way the oral argument went, it really couldn’t have been much better, said Gardner."
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I wonder what this is about; curious, no?
Nothing is listed on the US District and Appeals Court pages yet.
JURISDICTION
The Constitution of the United States mentions the areas of jurisdiction in which the courts may operate:
Common Law:
Common Law is based on God's Law. Anytime someone is charged under the Common Law, there must be a damaged party. You are free under the Common Law to do anything you please, as long as you do not infringe on the life, liberty, or property of someone else. You have a right to make a fool of yourself provided you do not infringe on the life, liberty, or property of someone else. The Common Law does not allow for any government action which prevents a man from making a fool of himself. For instance, when you cross over state lines in most states, you will see a sign which says, "BUCKLE YOUR SEAT BELTS--IT'S THE LAW." This cannot be Common Law, because who would you injure if you did not buckle up? Nobody. This would be compelled performance. But Common Law cannot compel performance.
Equity Law:
Equity Law is law which compels performance. It compels you to perform to the exact letter of any contract that you are under. So, if you have compelled performance, there must be a contract somewhere, and you are being compelled to perform under the obligation of the contract. Now this can only be a civil action--not criminal. In Equity Jurisdiction, you cannot be tried criminally, but you can be compelled to perform to the letter of a contract. If you then refuse to perform as directed by the court, you can be charged with contempt of court, which is a criminal action. Are our seat belt laws Equity laws? No, they are not, because you cannot be penalized or punished for not keeping to the letter of a contract.
Admiralty/Maritime Law: This is a civil jurisdiction of Compelled Performance which also has Criminal Penalties for not adhering to the letter of the contract, but this only applies to International Contracts. Now we can see what jurisdiction the seat belt laws (and all traffic laws, building codes, ordinances, tax codes, etc.) are under. Whenever there is a penalty for failure to perform (such as will failure to file), that is Admiralty/Maritime Law and there must be a valid international contract in force. However, the courts don't want to admit that they are operating under Admiralty/Maritime Jurisdiction, so they took the international law or Law Merchant and adopted it into our codes.
That is what the supreme Court decided in the Erie Railroad case--that the decisions will be based on commercial law or business law and that it will have criminal penalties associated with it. Since they were instructed not to call it Admiralty Jurisdiction, they call it Statutory Jurisdiction.
Several cases have been won using this argument, because it is fundamental to the separation of powers in the Constitution. The difficulty is threading the needle in the Federal Courts so as to give the opposing side no wiggle room. This is often difficult to do if you don't fully understand the arguments and have competent lawers who are familiar with the relevant case law.
Gardner is right on the money with his argument but I am curious as to why he didn't mention the "equal footing doctrine" for Nevada's admission to statehood. This was a point of contention regarding ownership of Federal lands even when the states of the Louisiana Territories were carved up. At that time, the Feds were using the land sales for direct revenue. The new States of the Territories argued that, once admitted to full Statehood, the land reverted to the States for sale, else that admission to the Union was under a standing that was unequal and therefore discounted the rights, freedoms, and representation of their citizens. (It already was unequal given the geographic scale of later admissions in the Senate. As far as I am concerned the nation needs a full reapportionment. It's WAY too blue.)
From what I can recall, Nevada may be a poor case for the equal footing argument because it was admitted without the requisite minimum population necessary under US Law (and was therefore unequal the other way!). (I think it had something to do with the Comstock.) Anyway, if this were brought up, is it possible that the Statehood itself would be invalidated in any minor respect?
Ain't it a tangled bitch when Congress doesn't follow the Constitution?
Congress doesn't know we have a Constitution? At least that's is my assumption because of the Bills that come from the Congressional representatives.
NV: Rancher Challenges Court's Jurisdiction
Right. Very good argument. If the feds control the land, they can control the state's representation in Congress... effectively (and intentionally if so desired) diluting and suppressing the states power by manipulating the population.
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