[Congressional Record Volume 146, Number 132 (Thursday, October 19, 2000)]
[Extensions of Remarks]
[Pages E1874-E1876]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  CHAIRMAN'S FINAL REPORT CONCERNING THE NOVEMBER 13, SUBCOMMITTEE ON 
           FORESTS AND FOREST HEALTH HEARING IN ELKO, NEVADA

                                 ______
                                 

                            HON. JIM GIBBONS

                               of nevada

                    in the house of representatives

                       Thursday, October 19, 2000

  Mr. GIBBONS. Mr. Speaker, last year on November 13th, the 
Subcommittee on Forests and Forest Health held a hearing in Elko, 
Nevada to study the events surrounding the closure of the South Canyon 
Road by the Forest Service. After a thunderstorm washed out parts of 
the road in the Spring of 1995, the agency prohibited the community of 
Jarbidge from repairing it--going so far as to initiate criminal action 
against the county. At this hearing, we learned that it wasn't just 
parts of the road that washed away in that storm but also the Federal 
Government's failure to use common sense. The South Canyon Road has 
been used by local residents since the late 1800s--to now keep the 
citizens of Elko County from maintaining and using what is clearly 
theirs is a violation of the statute commonly referred to as RS 2477. 
This is an issue of national significance, demonstrating ongoing 
attempts by the Federal Government, particularly under this 
Administration, to usurp the legal rights of States and Counties. So 
for this reason, the subcommittee had done extensive research into the 
fundamental questions concerning the South Canyon Road, specifically: 
who has ownership of the road and who has jurisdiction over the road? 
Subcommittee Chairman Chenoweth-Hage has compiled her research into 
this, her final report on the November 13th hearing. I would now 
respectfully

[[Page E1875]]

ask that it be submitted into the Record of this 106th Congress.

  CHAIRMAN'S FINAL REPORT, HEARING ON THE JARBIDGE ROAD, ELKO COUNTY, 
           NEVADA, SUBCOMMITTEE ON FORESTS AND FOREST HEALTH

                                Preface

       By invitation of Congressman Jim Gibbons of Nevada, the 
     Subcommittee on Forests and Forest Health held an oversight 
     hearing in Elko, Nevada on November 13th, 1999, on a dispute 
     between Elko County and the United States Forest Service 
     (USFS). The County of Elko claimed ownership of a road known 
     as the Jarbidge South Canyon Road by virtue of their 
     assertion of rights under a statute commonly referred to as 
     RS 2477. The USFS asserted they do not recognize the county's 
     ownership rights and claimed jurisdiction over the road under 
     the Treaty of Guadalupe Hidalgo, the proclamation creating 
     the Humboldt National Forest, the Wilderness Act, the Federal 
     Land Policy and Management Act (FLPMA), the Endangered 
     Species Act, and the Clean Water Act. This issue came to a 
     head when the USFS directed its contractor to destroy 
     approximately a one-fourth mile section of the Road, thus 
     preventing its use by parties claiming private rights of use 
     which could be accessed only by the Road. Also, access to the 
     Jarbidge Wilderness Area was closed off by the action of the 
     USFS.
       Chairman Chenoweth-Hage submits this final report to 
     members based on the testimony given and records available to 
     the Subcommittee. Representatives of the USFS failed to 
     defend their position from a legal standpoint, submitting no 
     legal analysis that justified their position. Instead, they 
     simply ``ruled'' that they did not recognize the validity of 
     the County's assertion to the road.
       The investment of time in the historic perspective leading 
     up to the County's assertion was fruitful, yielding numerous 
     clearly worded acts of Congress, backed up in a plethora of 
     case law. I have attempted to bring that historic perspective 
     to this report, because the Congressional and legal 
     background cannot be ignored if we are to view the western 
     lands issues in the framework Congress and the courts have 
     intended.
       I therefore submit my final report on the hearing on the 
     Jarbidge Road.

       Summary: The Basic Questions of Ownership and Jurisdiction

       The dispute over the Jarbidge South Canyon Road (Road) 
     between Elko County, Nevada and the United States Forest 
     Service (USFS) involves two basic questions:
       1. Who has ownership of the road?
       2. Who has jurisdiction over the road?
       Ownership is defined as control of property rights.
       Jurisdiction is defined as the right to exercise civil and 
     criminal process.
       The UNITED STATES argues that when the Humboldt National 
     Forest was created in 1909, the road in question became part 
     of the Humboldt National Forest. The UNITED STATES argues 
     that the Humboldt National Forest is public land owned by the 
     UNITED STATES and the USFS, as agent for the UNITED STATES, 
     has both ownership and jurisdiction. The UNITED STATES has 
     responded to the RS 2477 issue (Section 8, Act of July 26, 
     1866) by arguing that no RS 2477 road which was established 
     in a national forest after the creation of the national 
     forests, was valid, and all roads within the national forest 
     fall under USFS jurisdiction after passage of the Federal 
     Land Policy and Management Act of October 21, 1976 (FLPMA).
       Evidence was presented by Elko County in an effort to 
     establish proof of ownership of the Jarbidge South Canyon 
     Road. This evidence includes documents and oral testimony, 
     showing that the road was established in the late 1800s on 
     what had been a pre-existing Indian trail used by the native 
     Shoshone for an unknown period of time prior to any white 
     settlement in the area.
       Elko County claims jurisdiction over the Jarbidge South 
     Canyon Road by virtue of evidence that the road was created 
     to serve the private property interests of the settlers in 
     the area. Elko County cites various private right claims to 
     water, minerals, and grazing which the road was constructed 
     to serve.
       The crucial factor in determining which argument is correct 
     is to determine whether the federal land upon which the Road 
     exists is ``public land'' subject to federal ownership and 
     jurisdiction or whether the federal land upon which the Road 
     exists is encumbered with private
       In any dispute of this kind, it is essential to review, not 
     only prior history, but also the public policy of the United 
     States as expressed in acts of Congress and relevant court 
     decisions.

              I. Breaking Down the Principles of Ownership

       A. The law prior to Nevada Statehood.
       1. The Mexican cession and ``Kearney's Code.''
       Nevada became a state on October 30, 1864. Prior to that 
     time the area in question was part of the territory of 
     Nevada. The territory of Nevada had been created out of the 
     western portion of the territory of Utah. Utah Territory had 
     been a portion of the Mexican cession resulting from the 
     Mexican War of 1945-46. U.S. Brigadeer General of the Army of 
     the West, Stephen Watts Kearney, instituted an interim rule, 
     commonly referred to as ``Kearney's Code,'' over the ceded 
     area pending formal treaty arrangement between the U.S. and 
     Mexico. The Mexican cession was formalized two years later 
     with the Treaty of Guadalupe Hildago, February 2, 1848.
       Mexico recognized title of the peaceful/Pueblo (or 
     ``civilized'') Indians (either tribally or as individuals) to 
     the lands actually occupied or possessed by them, unless 
     abandoned or extinguished by legal process (i.e. treaty 
     agreements). The Mexican policy of inducing Indians to give 
     up their wandering ``nomadic, uncivilized'' life in favor of 
     a settled ``pastoral, civilized'' life, was continued by 
     Congress after the 1846 session and was the very basis of the 
     government's Indian allotment and reservation policy. Mexico 
     and Spain retained the mineral estate under both private 
     grants and public lands as a sovereign asset obtainable only 
     by express language in the grant or under the provisions of 
     the Mining Ordinance.
       2. The acquisition by the U.S.
       When the area was ceded to the U.S., the U.S. acquired all 
     ownership rights in the lands which had been previously held 
     by the Mexican government. This included the mineral estate 
     and the then unappropriated surface rights. Indian title, 
     where it existed, remained with the respective Indian tribes. 
     All other private property existing at the time of the 
     cession, was also recognized and protected. Kearney's Code 
     also recognized all existing Mexican property law and 
     continued, in force, the laws, ``concerning water courses, 
     stock marks and brands horses, enclosures, commons and 
     arbitrations'', except where such laws would be repugnant to 
     the Constitution of the United States. The Supreme Court of 
     the United States, has upheld the validity of Kearney's Code, 
     stating that Congress alone could have repealed it, and this 
     it has never done.
       In 1846, the areas where the Jarbidge South Canyon Road 
     presently exists was acquired by the United States. The 
     United States, like Mexico, retained the mineral estate, 
     while the surface estate was open to settlement. Settlement 
     of the surface estate continued under United States 
     jurisdiction in much the same way it had proceeded under 
     Mexican jurisdiction. Towns, cities and communities grew up 
     around agricultural and mining areas.
       3. The characteristics of the land and custom of settlement 
     under Mexican law.
       The Mexican cession, which is today the southwestern 
     portion of the United States, consisted primarily of arid 
     lands, interspersed with rugged mountain ranges. These 
     mountain ranges were the primary source of water supply for 
     the arid region. The water courses were part of the surface 
     estate. Control or development of the land by settlers for 
     either agricultural uses or mining depended on control of the 
     water courses.
       The most expansive (and most common) method of settlement 
     under the Mexican ``colonization'' law was for the individual 
     settler to establish a cattle and horse (ganado de mejor) or 
     sheep and goat (ganado de menor) farm, known as a ``rancho'' 
     or ranch. These ranches were large, eleven square leagues or 
     ``sitios'' (approximately one-hundred square miles). The 
     individual settler (under local authorization) would acquire 
     a portion of irrigable crop land and an additional allotment 
     of nearby seasonal/arid (temporal or agostadero) land and 
     mountainous land containing water sources (canadas or 
     abrevaderos) as a ``cattle range'' or ``range for 
     pasturage.'' Four years of actual possession gave the 
     ranchero a vested property right that could be sold (even 
     before final federal confirmation or approval of the survey 
     map (diseno). Control of livestock ranges depended on lawful 
     control of the various springs, seeps and other water sources 
     for livestock pasturage and watering purposes. Arbitration of 
     disputes over water rights and range boundaries (rodeo or 
     ``round-up'' boundaries) were adjudicated by local 
     authorities (jueces del campo or ``judges of the plains'').
       4. Mexican customs of settlement were maintained under U.S. 
     rule.
       This same settlement pattern of appropriating servitudes or 
     rights (servidumbres) for pasturage adjacent to water 
     courses, continued after the area was ceded to the United 
     States in 1846. One of the first acts of the California 
     legislature after the Mexican cession was to re-enact, as 
     state law, the previous Mexican ``jueces del campo'' or 
     ``rodeo'' laws governing the acquisition and adjudication of 
     range (or pasturage) rights on the lands within the state.
       The new settlers on lands in the Mexican cession after 
     1846, were not trespassers on the lands of the U.S., since 
     Kearney's Code had continued in effect all the previous laws 
     pertaining to water courses, livestock, enclosures and 
     commons (stock ranges). Under Mexican law, water rights, 
     possessory pasturage rights, and right-of-ways were easement 
     rights. Mexican land law was based on a split-estate system 
     (surface/mineral titles and easements) which the United 
     States Courts were unfamiliar with and for which no federal 
     equivalent law existed. Problems in sorting agricultural 
     (rancho) titles/rights from mining titles/rights quickly 
     became apparent when the courts began the adjudication of 
     Spanish and Mexican land claims. Congress (like Spain and 
     Mexico) had previously followed a policy of retaining mineral 
     lands and valuable mines as a national asset.
       5. Congress further defines and codifies settlement customs 
     through the Act of 1866 with the establishment of mineral and 
     surface estate rights.

[[Page E1876]]

       There was no law passed by Congress to define the 
     settlement process for the western mineral lands until 
     Congress addressed this problem by a series of acts beginning 
     in the 1860's. Key among the split-estate mining/settlement 
     laws was the Act of July 26, 1866. Congress established a 
     lawful procedure whereby the mineral estate of the United 
     States could pass into the possession of private miners. 
     Private mining operations could then turn the dormant 
     resource wealth of these lands into active resource wealth 
     for the benefit of a growing nation.
       The 1866 Act also dealt with the surface estate of mineral 
     lands. The act clearly recognized local law and custom and 
     decisions of the court, which had been operating relative to 
     these lands and extended these existing laws and customs into 
     the future. The 1866 Act created a general right-of-way for 
     settlers to cross these lands at will. It also allowed for 
     the establishment of easements.
       At this point, it is important to note the definitions of 
     these key terms:
       A right-of-way is defined as the right to cross the lands 
     of another.
       An easement is defined as the rights to use the lands of 
     another.
       Section 8 and 9 of the 1866 Act are the seminal U.S. law 
     defining the rights of ownership in the Jarbidge South Canyon 
     Road. Section 8, which was later codified as Revised Statute 
     2477, deals with the establishment of ``highways'' across the 
     land. The term highways as used in the 1866 Act refers to any 
     road or trail used for travel. The right-of-way portion of 
     this act was an absolute grant for the establishment of 
     general crossing routes over these lands at any point and by 
     whatever means was recognized under local rules and customs.
       Section 9 of the Act of July 1866, ``acknowledged and 
     confirmed'' the right-of-way for the construction of ditches, 
     canals, pipelines, reservoirs and other water conveyance/
     storage easements. Section 9 also guaranteed that water 
     rights and associated rights of ``possession'' for the 
     purpose of mining and agriculture (farming or stock grazing) 
     would be maintained and protected.
       B. The Law After Nevada Statehood.
       1. The states adopt Mexican settlement customs, as affirmed 
     by Kearney's Code and 1866 Act.
       Once settlers in an area had exercised the general right-
     of-way provisions of the 1866 Act to establish permanent 
     roads or trails, those roads or trails then, by operation of 
     law, became easement (which is the right to use the lands of 
     another). The general right-of-way provisions of the 1866 Act 
     gave Congressional sanction and approval to the authorization 
     of Kearney's Code respecting water courses, livestock 
     enclosures and commons, and local arbitrations respecting 
     possessory rights. All of the states and territories, west of 
     the 98th meridian ultimately adopted water right-of-way 
     related range/trail property laws similar to the former 
     Mexican laws in California, New Mexico, and Arizona. These 
     range rights were ``property'' recognized by the Supreme 
     Court.