Assembly Bill No. 672–Committee on
March 22, 1999
Referred to Committee on Constitutional Amendments
SUMMARY—Provides additional means to enforce Nevada’s claim to public lands. (BDR 26-1707)
FISCAL NOTE: Effect on Local Government: Yes.
Effect on the State or on Industrial Insurance: Yes.
EXPLANATION – Matter inbolded italics is new; matter between brackets
AN ACT relating to public lands; providing a civil remedy and a criminal penalty for certain acts; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
1-1Section 1. Chapter 321 of NRS is hereby amended by adding thereto
1-2the provisions set forth as sections 2 and 3 of this act.
1-3Sec. 2. A person who performs an act with respect to the use,
1-4management or disposal of any of the public lands in this state, other
1-5than as an agent of this state, is guilty of a gross misdemeanor.
1-6Sec. 3. A person aggrieved by a violation of section 2 of this act may
1-7commence a civil action against the violator to recover damages suffered
1-8as a proximate result of the violation and is entitled to recover $20,000 or
1-9treble the amount of his actual damages, whichever is greater, plus his
1-10costs and reasonable attorney’s fees in the action.
1-11Sec. 4. NRS 321.596 is hereby amended to read as follows:
1-12321.596 The legislature finds that:
1-131. The State of Nevada has a strong moral claim upon the public land
1-14retained by the Federal Government within Nevada’s borders because:
1-15(a) On October 31, 1864, the Territory of Nevada was admitted to
1-16statehood on the condition that it forever disclaim all right and title to
1-17unappropriated public land within its boundaries;
2-1(b) From 1850 to 1894, newly admitted states received 2 sections of
2-2each township for the benefit of common schools, which in Nevada
2-3amounted to 3.9 million acres;
2-4(c) In 1880 Nevada agreed to exchange its 3.9-million-acre school grant
2-5for 2 million acres of its own selection from public land in Nevada held by
2-6the Federal Government;
2-7(d) At the time the exchange was deemed necessary because of an
2-8immediate need for public school revenues and because the majority of the
2-9original federal land grant for common schools remained unsurveyed and
2-11(e) Unlike certain other states, such as New Mexico, Nevada received
2-12no land grants from the Federal Government when Nevada was a territory;
2-13(f) Nevada received no land grants for insane asylums, schools of
2-14mines, schools for the blind and deaf and dumb, normal schools, miners’
2-15hospitals or a governor’s residence as did states such as New Mexico; and
2-16(g) Nevada thus received the least amount of land, 2,572,478 acres, and
2-17the smallest percentage of its total area, 3.9 percent, of the land grant states
2-18in the Far West admitted after 1864, while states of comparable location
2-19and soil, namely Arizona, New Mexico and Utah, received approximately
2-2011 percent of their total area in federal land grants.
2-212. The State of Nevada has a legal claim to the public land retained by
2-22the Federal Government within Nevada’s borders because:
2-23(a) In the case of the State of Alabama, a renunciation of any claim to
2-24unappropriated lands similar to that contained in the ordinance adopted by
2-25the Nevada constitutional convention was held by the Supreme Court of
2-26the United States to be "void and inoperative" because it denied to
2-27Alabama "an equal footing with the original states" in Pollard v. Hagan, 44
2-28U.S. (3 How.) 212 (1845);
2-29(b) In Coyle v. Smith, 221 U.S. 559 (1911), the Supreme Court of the
2-30United States expressly affirmed the "equal footing" doctrine as
2-31enunciated in Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845), holding
2-32that to ensure equality among the states, the legislature of the State of
2-33Oklahoma had the power to locate, change and appropriate money for its
2-34own seat of government and that the Congress of the United States could
2-35not, through the Enabling Act of June 16, 1906, ch. 335, 34 Stat. 267,
2-36require the State of Oklahoma to erect its seat of government in a
2-37location designated by Congress;
2-38(c) The State of Texas, when admitted to the Union in 1845, retained
2-39ownership of all unappropriated land within its borders, setting a further
2-40precedent which inured to the benefit of all states admitted later "on an
2-41equal footing"; and
2-43Constitution of the United States by the reference of Article VI to prior
3-1engagements of the Confederation, first proclaimed the "equal footing"
3-2doctrine, and the Treaty of Guadalupe Hidalgo, by which the territory
3-3including Nevada was acquired from Mexico and which is "the supreme
3-4law of the land" by virtue of Article VI, affirms it expressly as to the new
3-5states to be organized therein.
3-63. The exercise of broader control by the State of Nevada over the
3-7public lands within its borders would be of great public benefit because:
3-8(a) Federal holdings in the State of Nevada constitute 86.7 percent of
3-9the area of the state, and in Esmeralda, Lincoln, Mineral, Nye and White
3-10Pine counties the Federal Government controls from 97 to 99 percent of
3-12(b) Federal jurisdiction over the public domain is shared among 17
3-13federal agencies or departments which adds to problems of proper
3-14management of land and disrupts the normal relationship between a state,
3-15its residents and its property;
3-16(c) None of the
3-17taxable and Federal Government activities are extensive and create a tax
3-18burden for the private property owners of Nevada who must meet the
3-19needs of children of Federal Government employees, as well as provide
3-20other public services;
3-21(d) Under general land laws only 2.1 percent of federal lands in Nevada
3-22have moved from federal control to private ownership;
3-23(e) Federal administration of the retained public lands, which are vital
3-24to the livestock and mining industries of the state and essential to meet the
3-25recreational and other various uses of its citizens, has been of uneven
3-26quality and sometimes arbitrary and capricious; and
3-27(f) Federal administration of the retained public lands has not been
3-28consistent with the public interest of the people of Nevada because the
3-29Federal Government has used those lands for armament and nuclear testing
3-30thereby rendering many parts of the land unusable and unsuited for other
3-31uses and endangering the public health and welfare.
3-324. The intent of the framers of the Constitution of the United States
3-33was to guarantee to each of the states sovereignty over all matters within
3-34its boundaries except for those powers specifically granted to the United
3-35States as agent of the states.
3-365. The attempted imposition upon the State of Nevada by the Congress
3-37of the United States of a requirement in the enabling act that Nevada
3-38"disclaim all right and title to the unappropriated public lands lying within
3-39said territory," as a condition precedent to acceptance of Nevada into the
3-40Union, was an act beyond the power of the Congress of the United States
3-41and is thus void.
4-16. The purported right of ownership and control of the public lands
4-2within the State of Nevada by the United States is without foundation and
4-3violates the clear intent of the Constitution of the United States.
4-47. The exercise of such dominion and control of the public lands
4-5within the State of Nevada by the United States works a severe, continuous
4-6and debilitating hardship upon the people of the State of Nevada.
4-78. The State of Nevada, in enacting NRS 321.596 to 321.599,
4-8inclusive, as amended by this act, and sections 2 and 3 of this act, is
4-9acting as a sovereign state to enforce within its borders the provisions of
4-10the Constitution of the United States. In so acting, it is subject only to the
4-11original jurisdiction of the Supreme Court of the United States.
4-12Sec. 5. NRS 321.5963 is hereby amended to read as follows:
4-13321.5963 As used in NRS 321.596 to 321.599, inclusive, and sections
4-142 and 3 of this act, unless the context otherwise requires:
4-151. "Division" means the division of state lands of the state department
4-16of conservation and natural resources.
4-172. "Public lands" means all lands within the exterior boundaries of the
4-18State of Nevada , including lands managed or controlled by the Bureau
4-19of Land Management, except lands:
4-20(a) To which title is held by any private person or entity;
4-21(b) To which title is held by the State of Nevada, any of its local
4-22governments or the University and Community College System of Nevada;
4-23(c) Which are located within congressionally authorized national parks,
4-24monuments, national forests or wildlife refuges or which are lands
4-25acquired by purchase consented to by the legislature;
4-26(d) Which are lawfully controlled by the United States Department of
4-27Defense, the Department of Energy or the Bureau of Reclamation; or
4-28(e) Which are held in trust for Indian purposes or are Indian
4-30Sec. 6. NRS 321.5967 is hereby amended to read as follows:
5-22planning council, created pursuant to NRS 321.740:
5-231. Shall review and approve or disapprove all regulations proposed by
5-24the state land registrar pursuant to NRS 321.597.
5-26pursuant to NRS 321.596 to 321.599, inclusive, if an appeal is taken
5-27pursuant to NRS 321.5987, and affirm, modify or reverse the decision.
5-29use of lands in Nevada under federal management which is submitted by
5-30the state land use planning agency.
5-31Sec. 7. NRS 321.597 is hereby amended to read as follows:
5-32321.597 1. The division shall hold the public lands of the state in
5-33trust for the benefit of the people of the state and shall manage them in an
5-34orderly and beneficial manner consistent with the public policy declared in
5-37321.5973, the state land registrar may with the approval of the
5-39the public lands in an orderly and beneficial manner and to carry out the
5-40provisions of NRS 321.596 to 321.599, inclusive, and the public trust
5-41created in those sections.
5-423. Except as otherwise provided in this subsection, the state land
5-43registrar may contract for or employ such professional and clerical
6-1personnel as are needed to carry out his functions. Any contract for
6-2professional services must be approved by the state board of examiners and
6-3any money necessary to compensate those persons must be approved for
6-4expenditure by the legislature or the interim finance committee.
6-5Sec. 8. NRS 321.5973 is hereby amended to read as follows:
6-6321.5973 1. Subject to existing rights
6-7lands in Nevada and all minerals not previously appropriated are the
6-8property of the State of Nevada and subject to its jurisdiction and control.
6-92. Until equivalent measures are enacted by the State of Nevada, the
6-10rights and privileges of the people of the State of Nevada under the
6-1216 U.S.C. §§ 471a et seq., the General Mining Laws ,
6-14Raising Homestead Act, 43 U.S.C. § 299, the Taylor Grazing Act ,
6-15U.S.C. §§ 315 et seq. ,
6-17Rangelands Improvement Act ,
6-18rights of way and easements for public utilities must be preserved under
6-19administration by the state.
6-203. Public lands in Nevada which have been administered by the United
6-21States under international treaties or interstate compacts must continue to
6-22be administered by the state in conformance with those treaties or
6-244. The board of county commissioners of each county:
6-25(a) May adopt such ordinances as are necessary to carry out the
6-26provisions of NRS 321.596 to 321.599, inclusive, concerning the public
6-27lands within the boundaries of the county; and
6-28(b) May by ordinance impose a fee for the use of public lands within
6-29the boundaries of the county as recommended by the land use planning
6-30council. The amount of the fee must be approved by the legislature if it is
6-31in session or the legislative commission if the legislature is not in session.
6-32The ordinance must not adversely affect any existing rights and
6-345. As used in this section, "existing rights and privileges" means the
6-35rights and privileges which have been established and recognized by the
6-36laws, customs and judicial decisions of this state, including, but not
6-38(a) Rights of way for roads, trails, ditches, flumes, pipelines and
6-40(b) Prospecting and mineral rights, grazing rights or privileges, the
6-41right to use land for recreational purposes, the right to harvest wild fruits
6-42free of charge and the rights of residents of this state to use wood, stone,
7-1gravel and clay free of charge if the wood, stone, gravel and clay is not
7-3Sec. 9. NRS 321.598 is hereby amended to read as follows:
7-4321.598 1. Except as otherwise provided in
7-5subsections 2 and 3, no sale, conveyance or other disposal of the public
7-6lands may be permitted or authorized by the state land registrar, unless
7-7specifically authorized by an act of the legislature enacted after July 1,
7-92. To the extent that the public lands may be conveyed, leased,
7-11the state land registrar
7-12or permit the use of public lands to the same extent or in the same manner
7-13as those lands are conveyed, leased, licensed or permitted to be used by the
7-14Federal Government or any of its agencies.
7-153. The board of county commissioners of a county in which public
7-16lands are located may, for any public purpose of the county or any city or
7-17town within the county, select any portion of the public lands located
7-18within the county that it wishes to acquire and notify the state land
7-19registrar in writing of its selection. Upon receipt of the notification, the
7-20state land registrar shall convey to the county all right, title and interest
7-21of the state in and to that portion of the public lands selected.
7-224. All proceeds of fees, rents, royalties or other money paid to the state
7-23under NRS 321.596 to 321.599, inclusive, must be deposited with the state
7-24treasurer for credit to the state general fund.
7-25Sec. 10. NRS 321.5987 is hereby amended to read as follows:
7-26321.5987 1. Any person who is aggrieved by a decision of the state
7-27land registrar made pursuant to NRS 321.596 to 321.599, inclusive, may
7-28appeal by letter to the
7-2930 days after the date of the decision from which the appeal is taken. The
7-30letter must set out:
7-31(a) The decision from which the appeal is taken;
7-32(b) Legal grounds for the contention of the appellant that the decision
7-33exceeds the authority of the state land registrar; and
7-34(c) Facts to support the contention,
7-35with sufficient particularity to permit the state land registrar to prepare for
7-372. Upon receiving the letter, the
7-38(a) Dismiss the appeal if it appears from the letter to lack any merit; or
7-39(b) Set a date for a hearing of the appeal which must be not less than 15
7-40days nor more than 45 days after the date on which the
7-41receives the letter. The
7-42and the appellant of the date, time and place of the hearing.
7-433. Any hearing held by the
8-14. The state land registrar or his representative shall present at the
8-2hearing the facts considered in reaching his decision. The appellant or his
8-3representative may present matters in support of his contention that the
8-4state land registrar’s decision exceeds his authority.
8-55. If the appellant does not appear in person or by representative, the
8-7and may dismiss the appeal or take any other action which it finds to be
8-8reasonable and proper.
8-10conducting the hearing. The order of the
8-11in a contested case.
8-12Sec. 11. NRS 321.599 is hereby amended to read as follows:
8-13321.599 The attorney general may initiate an action or defend
8-14an action commenced in any court to carry out or enforce the provisions of
8-15NRS 321.596 to 321.599, inclusive, or seek
8-16relief to protect the interests of the state or the people of the state in the
8-19attorney general refuses to initiate or defend such an action, the district
8-20attorney of the appropriate county may do so.
8-21Sec. 12. NRS 321.7355 is hereby amended to read as follows:
8-22321.7355 1. The state land use planning agency shall prepare, in
8-23cooperation with appropriate federal and state agencies and local
8-24governments throughout the state, plans or statements of policy concerning
8-25the acquisition and use of lands in the State of Nevada that are under
8-272. The state land use planning agency shall, in preparing the plans and
8-28statements of policy, identify lands which are suitable for acquisition for:
8-29(a) Commercial, industrial or residential development;
8-30(b) The expansion of the property tax base, including the potential for
8-31an increase in revenue by the lease and sale of those lands; or
8-32(c) Accommodating increases in the population of this state.
8-33The plans or statements of policy must not include matters concerning
8-34zoning or the division of land and must be consistent with local plans and
8-35regulations concerning the use of private property.
8-363. The state land use planning agency shall:
8-37(a) Encourage public comment upon the various matters treated in a
8-38proposed plan or statement of policy throughout its preparation and
8-39incorporate such comments into the proposed plan or statement of policy
8-40as are appropriate;
8-41(b) Submit its work on a plan or statement of policy periodically for
8-42review and comment by the land use planning
8-43advisory board on natural resources and any committees of the legislature
9-1or subcommittees of the legislative commission that deal with matters
9-2concerning the public lands;
9-3(c) On or before February 1 of each odd-numbered year, prepare and
9-4submit a written report to the legislature concerning any activities engaged
9-5in by the agency pursuant to the provisions of this section during the
9-6immediately preceding biennium, including, without limitation:
9-7(1) The progress and any results of its work; or
9-8(2) Any plans or statements of policy prepared pursuant to this
9-10(d) Provide written responses to written comments received from a
9-11county or city upon the various matters treated in a proposed plan or
9-12statement of policy.
9-134. Whenever the state land use planning agency prepares plans or
9-14statements of policy pursuant to subsection 1 and submits those plans or
9-15policy statements to the governor, legislature or an agency of the Federal
9-16Government, the state land use planning agency shall include with each
9-17plan or statement of policy the comments and recommendations of:
9-18(a) The land use planning
9-19(b) The advisory board on natural resources; and
9-20(c) Any committees of the legislature or subcommittees of the
9-21legislative commission that deal with matters concerning the public lands.
9-225. A plan or statement of policy must be approved by the governing
9-23bodies of the county and cities affected by it before it is put into effect.
9-24Sec. 13. NRS 321.740 is hereby amended to read as follows:
9-25321.740 1. The land use planning
9-2617 members appointed by the
9-27of the several counties is hereby created.
9-32appointed must not be an elected officer.
9-333. The members of the council shall elect a chairman from among
9-34their members on or before July 1 of each odd-numbered year. After the
9-35initial election, the chairman shall hold office for a term of 2 years
9-36commencing on July 1 of each odd-numbered year. If a vacancy occurs
9-37in the chairmanship, the members of the council shall elect a
9-38replacement for the remainder of the unexpired term.
9-394. The council shall meet at such times and places as are specified by
9-40a call of the chairman. The affirmative vote of a majority of the members
9-41present at a meeting is sufficient to take any action of the council.
10-15. The members of the council are entitled to receive a salary of not
10-2more than $80, as fixed by the council, for each day or portion of a day
10-3of attendance at a meeting of the council.
10-46. While engaged in the business of the council, each member and
10-5any person employed by the council is entitled to receive the travel
10-6expenses and subsistence allowances
10-9Sec. 14. NRS 321.750 is hereby amended to read as follows:
10-10321.750 The land use planning
10-111. Advise the administrator on the development and distribution to
10-12cities and counties of information useful to land use planning.
10-132. Advise the state land use planning agency regarding the
10-14development of plans and statements of policy pursuant to subsection 1 of
10-16Sec. 15. NRS 321.755 is hereby amended to read as follows:
10-17321.755 1. The executive council of the land use planning
10-18council is hereby created to consider and make recommendations for land
10-19use planning in areas of critical environmental concern and to resolve
10-20inconsistencies between the land use plans of local government entities.
10-212. The executive council consists of the administrator and four persons
10-22selected by the land use planning
10-23members. Each member of the executive council shall serve for 2-year
10-25Sec. 16. NRS 321.761 is hereby amended to read as follows:
10-26321.761 1. If an inconsistency in land use plans develops between
10-27two or more adjacent or overlapping local government entities which
10-28cannot be resolved between them, one or more of them may request the
10-29state land use planning agency to study and assist in resolving the
10-312. Upon receipt of such a request the administrator shall convene a
10-32meeting of all the affected entities and shall provide technical assistance
10-33and advice in resolving the inconsistency.
10-343. If, after subsequent meetings over a reasonable period
10-35determined by the administrator, the affected entities cannot resolve the
10-36inconsistency, the matter
10-37of the land use planning
10-38Sec. 17. NRS 321.770 is hereby amended to read as follows:
10-39321.770 1. The state land use planning agency shall provide
10-40assistance in land use planning for areas of critical environmental concern:
10-41(a) When the governor directs that the agency review and assist in land
10-42use planning for an area he finds to be of critical environmental concern.
11-1(b) When one or more local government entities request that the agency
11-2advise and assist in land use planning for an area which affects them and
11-3which they consider to be of critical environmental concern.
11-42. Upon receipt of a directive or a request pursuant to subsection 1, the
11-5administrator shall study the problems of the area described and meet with
11-6the affected local government entities to receive their initial comments and
11-7recommendations. He shall then submit the matter of planning for the area
11-8of critical environmental concern to the executive council of the land use
11-103. The executive council shall include in its procedures one or more
11-11public hearings upon notice given by at least one publication at least 20
11-12days before the hearing in a newspaper or combination of newspapers
11-13having general circulation throughout the area affected and each city and
11-14county any portion of whose territory lies within
11-164. Following completion of the hearings and consideration of other
11-17information, the executive council shall make its final recommendations
11-18for land use planning policies in the area of critical environmental concern.
11-19The recommendations may include proposed land use regulations to carry
11-215. No land use regulation adopted by the executive council pursuant to
11-22this section may become effective without the approval of the governor.
11-23Sec. 18. NRS 328.500 is hereby amended to read as follows:
11-24328.500 1. The legislature finds that more than 87 percent of the
11-25land in the State of Nevada is held by the Federal Government, of which
11-2669 percent is public land, and the actions of federal agencies and
11-27instrumentalities involving the public lands and waters appurtenant to and
11-28public roads over those lands significantly affect the health, safety, welfare
11-29and happiness of the citizens of this state and may interfere with the
11-30traditional sovereign functions of the State of Nevada with respect to those
11-31lands, waters and roads and their uses.
11-322. Except as otherwise provided in subsection 3, the attorney general
11-34(a) On his own initiative or at the request of the governor or any state
11-35agency, bring and maintain any action; or
11-36(b) Intervene on behalf of or bring and maintain an action on the
11-37relation of, any person in any meritorious case,
11-38in any court or before any federal agency if any action or proposed action
11-39by a federal agency or instrumentality with respect to the public lands or
11-40waters appurtenant to or public roads over those lands impairs or tends to
11-41impair the sovereignty of the State of Nevada.
11-423. The attorney general may bring an action pursuant to this section if:
12-1(a) The legislature has appropriated sufficient money for the operation
12-2of his office to permit him to bring and maintain the action until its
12-4(b) He has obtained the permission:
12-5(1) From the legislature, if it is in session, expressed by a concurrent
12-7(2) If the legislature is not in session, from the interim finance
12-94. As used in this section, "public lands" means all lands within the
12-10exterior boundaries of the State of Nevada , including lands managed or
12-11controlled by the Bureau of Land Management, except lands:
12-12(a) To which title is held by any private person or entity;
12-13(b) To which title is held by the State of Nevada, any of its local
12-14governments or the University and Community College System of Nevada;
12-15(c) Which are located within congressionally authorized national parks,
12-16monuments, national forests or wildlife refuges or which are lands
12-17acquired by purchase consented to by the legislature;
12-18(d) Which are lawfully controlled by the United States Department of
12-19Defense, the Department of Energy or the Bureau of Reclamation; or
12-20(e) Which are held in trust for Indian purposes or are Indian
12-22Sec. 19. The amendatory provisions of section 2 of this act do not
12-23apply to offenses that were committed before the effective date of this act.
12-24Sec. 20. This act becomes effective upon passage and approval.