On June 2, 1979, then‐governor Bob List signed into law AB 413 — encoded today as NRS 321.596‐321.599. AB 413 laid out clearly the unconstitutionality of federal control over 87 percent of the lands in Nevada. The charges first raised by List and Silver State lawmakers sparked a movement across Western states seeking freedom from the burden of federal control of most land within the states’ borders — the “Sagebrush Rebellion.”
This movement continues to gain strength. In 2011, Utah Gov. Gary Herbert signed HJR 39, a joint legislative resolution that garnered 56 cosponsors. It relied upon many of the legal arguments first raised by Nevada lawmakers three decades ago and called on Congress to relinquish control of “all right, title, and jurisdiction in those lands that were committed to the purposes of [that] state by terms of its enabling act compact.”
Federal land control runs afoul of the “equal footing” clause and doctrine. The 1864 enabling act by which Congress granted Nevada statehood declared that Nevada “shall be admitted into the Union upon an equal footing with the original states, in all respects whatsoever.”
Nevertheless, the act then attached conditions to Nevada’s statehood to which the original states were never subject, including the loss of most land within the state’s boundaries to federal dominion. In 1845, the U.S. Supreme Court declared an almost identical provision in the enabling act for the State of Alabama unconstitutional, because it ran afoul of the equal footing doctrine. Said the Court, “the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama or any of the new states were formed; except for temporary purposes.” As soon as new states were formed, said the Court, “the power of the United States over these lands as property was to cease.”
Later that year, when Congress admitted Texas into the Union, it allowed that state to retain ownership of all unappropriated land within its borders. Nevada declared in 1979 that this precedent “inured to the benefit of all states admitted later ‘on an equal footing.'” List and Nevada lawmakers concluded that, “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.”
Nevada and its subdivisions are prohibited from collecting taxes on federal lands. Nevada’s enabling act states that “no taxes shall be imposed by said state on lands or property therein belonging to, or which may hereafter be purchased by, the United States.” With nearly nine‐tenths of the state under federal control, this condition severely limits the public, as well as private, resources available to Nevada residents. This recognition led List and Nevada lawmakers to protest that:
[N]one of the federal 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.
Sale of federal lands could alleviate short‐term fiscal stress and lead to economic development. Federal authorities control tens of billions of dollars worth of real property in the Silver State against the declared will of the sovereign State of Nevada. If Nevada’s “equal footing” were to be legally acknowledged, with right and title for lands now controlled by federal agencies, immediate private auction could generate massive public revenues for Silver State governments and prompt investment and job creation throughout the state.
Join Utah in demanding federal authorities immediately relinquish “all right, title and jurisdiction” over federally held lands. Lawmakers should immediately petition Congress for a redress of grievances and direct the Nevada Attorney General to pursue legal action to compel the federal government to abandon its unconstitutional claim to state lands.
Geoffrey Lawrence is deputy policy director at the Nevada Policy Research Institute. For more visit http://npri.org.
Earlier this year, NPRI released Solutions 2013, a comprehensive sourcebook of research and recommendations in 39 policy areas. Now, each week during the run-up to the 2013 Legislative Session, NPRI will highlight one of these as its Solution of the Week. If you would like NPRI to speak to your organization about this or another policy recommendation, please contact Victor Joecks at [email protected]. Solutions 2013 is also available online here.