[Congressional Record Volume 146, Number 133 (Monday, October 23, 2000)]
[Extensions of Remarks]
[Pages E1883-E1887]
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

                        Monday, October 23, 2000

  Mr. GIBBONS. Mr. Speaker, last year on November 13th, the 
Subcommittee on Forests

[[Page E1884]]

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 has 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 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 13, 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 property rights over which 
     the state of Nevada and private citizens exercise ownership 
     and
       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 has 
     been a portion of the Mexican cession resulting from the 
     Mexican War of 1845-46. U.S. Brigadier 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 area 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 
     ``sitos'' (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 appropriate servitudes or 
     rights (servidumbres) for pasturage adjacent to water 
     courses, continued after the area was ceded to the United

[[Page E1885]]

     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.
       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 the 
     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.
       Sections 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 26, 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 easements (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 arbitration 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.
       2. The Supreme Court upholds states' adoption of settlement 
     customs and attached range rights.
       In Omaechevarria v. Idaho, it was held that all Western 
     states had adopted range law similar to Idaho's, that those 
     laws were a valid exercise of the state's constitutional 
     police power and did not infringe on the government's 
     underlying property interest. Grazers took possession and 
     control of certain range areas primarily by gaining lawful 
     control of water courses. The water courses were under the 
     jurisdiction of State and Territorial government by authority 
     of Kearney's Code and the 1866 Act. The general right-of-way 
     provision of the 1866 Act became an easement for grazing, the 
     bounds of the easement being determined by the exterior 
     boundaries of the area the grazier could effectively possess 
     and control.
       3. Only the states possess the authority to define 
     property.
       As a general proposition, the United States, as opposed to 
     the several states, is not possessed of a residual authority 
     enabling it to define property in the first instance. The 
     United States has performed the role of agent over lands 
     which are lawfully owned by the union of states, or the 
     United States. Individual States in the southwest, 
     established laws deriving from local custom and court 
     decisions (common law) for determining property rights. These 
     were the local laws, customs, and decisions of the court 
     affirmed by Congress in the Act of July 26, 1866. The Act 
     extended this principle to all the western states and 
     conferred a license on settlers to develop property rights in 
     both the mineral estates and surface estate of the mineral 
     lands of the United States.
       C. Congress Affirmation of Local Laws and Customs Regarding 
     Ownership.
       1. Congress has passed numerous Acts recognizing surface 
     and mineral estate rights.
       The argument of the United States claiming ownership of the 
     Jarbidge South Canyon Road raises a perplexing question. To 
     arrive at the conclusion that the United States Forest 
     Service owns the Road based on the Mexican cession to the 
     United States in 1846, is to ignore local law, custom, court 
     decisions, and the Congressional Act that confirmed those 
     local laws, customs, and court decisions in 1866. The United 
     States in its reach to claim all title
       1. The Mining Act of 1872, confirming lawful procedure for 
     citizens to acquire property rights in the mineral estate of 
     federal lands;
       2. The Act of August 30, 1890, which confirmed private 
     rights and settlement then existing on the surface estate of 
     federal lands;
       3. The General Land Law Revision Act of March 3, 1891, 
     which further confirmed existing private rights (settlement) 
     on the land;
       4. The Act for Surveying Public Lands of June 4, 1897, also 
     known as the Forest Reserve Organic Act which excluded all 
     lands within Forest Reserves more valuable for agriculture 
     and mining and guaranteed rights to access, the right to 
     construct roads and improvements, the right to acquire water 
     rights under state law, and continued state jurisdiction over 
     all persons and property within forest reserves.
       2. The courts insist that these laws must be read on pari 
     materia (all together).
       The courts have stated repeatedly that laws relating to the 
     same subject (such as land disposal laws) must be read in 
     pari materia (all together). In other words, FLPMA or any 
     other land disposal act cannot be read as if it stands alone. 
     It must be read together with all its parts and with every 
     other prior land disposal act of Congress if the true intent 
     of the act is to be known.
       3. Each of these Acts contain ``savings'' clauses 
     protecting existing right, including FLPMA.
       All acts of Congress, relating to land disposal contain a 
     savings clause protecting prior existing rights. FLPMA 
     contains a savings clause protecting prior existing property 
     rights. There is an obvious reason for this. Any land 
     disposal law passed by Congress without a savings clause 
     would amount to a ``taking'' of private property without 
     compensation. This could trigger litigation against the 
     United States and monetary liability on the part of the U.S.

      II. Determining the Ownership of Jarbidge South Canyon Road

       A. Executive order creating Humboldt National Forest, Where 
     the Road Resides, and relevant Congressional acts contain a 
     savings clause protecting Preexisting rights.
       The Presidential Executive Order which created the Humboldt 
     National Forest contained a savings clause, protecting all 
     existing rights and excluding all land more valuable for 
     agriculture and mining. The Road was in existence long before 
     there was a Humboldt National Forest. The Road was a prior 
     existing right, having been confirmed by the Act of 1866 and 
     related subsequent acts of Congress as well as court 
     decisions. The Road was never a part of the Humboldt National 
     Forest, and could not be made a part of the Humboldt National 
     Forest without triggering the Fifth Amendment of the 
     Constitution of the United States dealing with ``takings'' 
     and ``compensation.''
       The Wilderness Act which created the Jarbidge Wilderness 
     Area also contained a savings clause protecting prior 
     existing rights.
       B. The United States makes errant arguments claiming 
     ownership of the Road.
       1. The U.S. argument regarding ``public lands'' resulting 
     from Mexican cession logically fails on its face.
       The U.S. argues that the Mexican cession of 1846, ratified 
     in the Treaty of Guadalupe Hidalgo in 1848, conveyed the Road 
     and the land of the Road crosses to the United States, which 
     some 150 years later remain ``public land'' unencumbered by 
     private rights. If this argument is valid, the myriad other 
     roads, highways, towns, cities, ranches, farms, mines and 
     other private property which did not exist in the southwest 
     in 1846 but which exists today also remain the sole property 
     of the United States. One cannot logically reach the first 
     conclusion without accepting the later.
       2. The true nature of ``public lands.''
       ``Public Lands'' are ``lands open to sale or other 
     dispositions under general laws, lands to

[[Page E1886]]


       The mineral estate in the Humbolt National Forest where no 
     claims or rights have attached is ``public land'' according 
     to FLPMA. The mineral estate in these lands is still open to 
     disposition under the mining laws of the United States. 
     Private agricultural and patented mineral lands, as well as 
     surface estate rights in grazing allotments or subsurface 
     rights in unpatented mining claims are not public lands 
     within the definition set forth in FLPMA.
       The Road is bounded on both sides by mining claims and 
     lawfully adjudicated grazing allotments. This fact is clear 
     from the testimony and the evidence presented to the 
     Subcommittee. The record shows that mining, grazing rights 
     and water rights as well as general access right-of-ways were 
     established on these lands in the late 1800's and preceded 
     the establishment of the Humboldt National Forest and the 
     Jarbidge Wilderness Area by many years. No evidence has been 
     submitted to the record showing any lawful extinguishment of 
     these rights which would effect a return of the area in 
     question to ``public land'' status, giving rise to a trespass 
     against the United States.
       3. The United States errantly cites FLPMA as extinguishing 
     RS 2477 rights.
       The United States has also argued that no RS 2477 road 
     could be created in a national forest after the date of 
     creation of the national forest. They cite FLPMA as authority 
     for this argument. This does, however, ignore the fact that 
     FLPMA applies to all federal lands. FLPMA itself confirms all 
     prior existing roads, whose origins predate October 21, 1976.
       The United States claims that FLPMA allows the USFS to 
     permit right-of-ways, and thus gives them the right to 
     exercise control over existing roads in the national forest. 
     However, FLPMA was amended in 1985 to clarify that the USFS 
     has no authority to impose regulations on prior existing 
     roads that would diminish the scope and extent of the 
     original grant. Any regulatory control of an existing RS 2477 
     road diminishes the scope and extent of an existing right. 
     The regulatory control of right-of-ways cited by the United 
     States only applies to right-of-ways created after October 
     21, 1976.
       Nothing in the law allows the USFS to usurp control over 
     right-of-ways, existing prior to October 21, 1976, or to 
     change the definition of a road which had existed prior to 
     1976. Congress clarified this issue in Section 198 of the 
     Department of Interior Appropriations Bill for 1996: ``No 
     final rule or regulation of any agency of the federal 
     government pertaining to the recognition, management, or 
     validity of a right-of-way, pursuant to Revised Statute 2477 
     (43 U.S.C. 932) shall take effect unless expressly authorized 
     by an act of Congress subsequent to the date of enactment of 
     this act.''

                     III. Establishing Jurisdiction

       A. Determining whether State or Federal Government has 
     jurisdiction is key.
       The USFS has threatened arrest and criminal prosecution of 
     various individuals in the road dispute. The USFS has 
     threatened litigation against Elko County for Elko County's 
     attempt to defend against a ``taking'' of its property and 
     jurisdiction. The United States and its agency, the USFS 
     claims to have jurisdiction over the matter involved in this 
     dispute. Jurisdiction differs from ownership, in that 
     ownership is the control of property rights and usually vests 
     in individuals and corporate entities, while jurisdiction is 
     the right to exercise civil and criminal process, a right 
     which usually vests in government. The question in this 
     dispute is: does the United States have jurisdiction? Or does 
     Elko County as a subdivision of the state of Nevada have 
     jurisdiction?
       B. The establishment of jurisdiction depends on proper use 
     of the term ``Public Lands.''
       The United States makes its claim to jurisdiction on the 
     premise that the national forests are public lands subject to 
     the jurisdiction of the United States. The term ``public 
     lands'' has a lawful definition. When used in a dispute over 
     lawful rights, the lawful definition of ``public lands'' must 
     be used. In recent years, this term has been widely misused 
     by the government to encompass all lands for which the 
     federal government has a management responsibility. In 
     reality, the lawful definition of ``public lands'' are 
     ``lands available to the public for purchase and/or 
     settlement.'' The courts have repeatedly held that when a 
     lawful possession of the public lands has been taken, these 
     lands are no longer available to the public and are therefore 
     no longer public lands.
       Possession of the mineral estate in public lands could be 
     lawfully taken under the mining acts. Where valid mining 
     claims exist, that land is no longer public land. Possession 
     of the surface estate could be lawfully taken under various 
     pre-emption and homestead acts of Congress. Possession and 
     settlement of the surface estate for grazing areas on the 
     mineral lands of the United States derived from the general 
     right-of-way provisions of the Act of July 26, 1866 and was 
     confirmed by the Act of August 30, 1890. Congress revised the 
     land laws to conform to the intent of the Act of August 30, 
     1890 with the passage of the General Land Law Revision
       1. Congress has withdrawn the lands from the public domain 
     through various Acts.
       Congress provided for the withdrawal of lands from the 
     public domain as forest reserves in Section 24 of the Act of 
     March 3, 1891. The intent of Congress as expressed in the 
     1891 and 1897 Acts was to protect timber stands (from 
     exploitation by large, rapacious timber and mining 
     corporations) in order to provide a continued supply of wood 
     for settlers and by so doing improving watershed yields to 
     provide a continuous water supply for appropriation by 
     settlers. These Acts also contained numerous survey and 
     administrative provisions providing for the identification 
     and adjudication of prior existing private property rights 
     within the exterior boundaries of the reserves. When the 
     forest reserves were withdrawn from the public lands, the 
     lands within the reserves were only available to the public 
     for purchase or settlement after the date of the withdrawal 
     if they were more valuable for agricultural (stock grazing) 
     or mining purposes, and if they were not already occupied by 
     prior possession.
       2. The adjudicatory process.
       The adjudication applied to rights established, whether for 
     homesteads, roads, ditches, or range easements, prior to 
     their withdrawal as forest reserves. Adjudication of the 
     prior rights on the forest reserves resulted in lawful 
     recognition of rights to lands within the exterior boundaries 
     of the forest reserves (later renamed as national forests 
     after 1907). For example, homesteads in fee simple, absolute 
     title, and water right and right-of-way related surface 
     estate rights in the form of grazing allotments were some of 
     the lawful rights recognized. Homesteads, grazing allotments, 
     and mining claims ceased being public lands upon their 
     adjudication by property authority.
       On national forest/reserves being established for a split-
     estate purpose of providing timber for settlers (and 
     enhancing water yield), miners and ranchers could only cut or 
     clear timber for fuel, fences, buildings and developments 
     related to the mining or agricultural use of the claims or 
     allotments.
       D. The proper adjudication of the Humboldt National Forest 
     belongs to the State.
       1. Grazing allotments cover the entire forest.
       The Humboldt National Forest was adjudicated prior to 1920. 
     The grazing allotments were identified and confirmed as a 
     private property right to the surface state of the forest 
     reserves. These grazing allotments cover the entire Humboldt 
     National Forest, including the area traversed by the Road. 
     The Road traverses the lawfully adjudicated Jarbidge Canyon 
     allotment.
       2. The Supreme Court has confirmed state jurisdiction.
       On May 19, 1907, the U.S. Supreme Court held in the case of 
     Kansas v. Colorado that the United States was only an 
     ordinary proprietor within the state of Colorado and subject 
     to all the sovereign laws of the state of Colorado. The court 
     ruled that forest reserves were not federal enclaves subject 
     to the doctrine of exclusive legislative jurisdiction of the 
     United States. Local peace officers were to exercise civil 
     and criminal process over these lands. Forest Service rangers 
     were not law enforcement officers unless designated as such 
     by state authority. The USFS had no general grant of law 
     enforcement authority within a sovereign State. The court has 
     also held that a right-of-way and related improvements (as 
     well as vehicles on the right-of-way) within a federal 
     reservation were private interests separate from the 
     government's title to the underlying land and that the United 
     States had no legislative (civil or criminal) jurisdiction 
     without an express cession from the state.
       The Court has held that when the United States disposes of 
     any interest in federal lands that there is an automatic 
     relinquishment of federal jurisdiction over that property. By 
     clear and identical language, Congress has stated in the 
     Organic Act of June 4, 1897, the Eastern Forests (Week's) Act 
     of 1911, and the Taylor Grazing Act of 1934, that there was 
     no intention to retain federal jurisdiction over private 
     interests within national forests. The courts have 
     consistently upheld the ruling in Kansas v. Colorado since 
     1907. Even standing timber within a national forest (once 
     sold under a timber contract) ceases to be federal property 
     subject to federal jurisdiction.

                               Conclusion

       As laid out in this report and in the hearing record, un-
     rebutted evidence presented in the Road dispute clearly 
     demonstrates that the United States and its agent, the US 
     Forest Service, have no claim to ownership of the Road. 
     Control of property rights to the road clearly vests in the 
     state of Nevada and Elko County on behalf of the public who 
     created the road under the general right-of-way provisions of 
     the Act of 1866. Even if Elko County disclaimed any interest 
     in the road, the individual owners whose mines, ranches and 
     other property are accessed by the road may have a 
     compensable property right in the road.
       Futher, the state of Nevada and its subdivision (Elko 
     County) have lawfully exercised jurisdiction over the Road. 
     This jurisdiction would appear to include the right to 
     maintain the road under the laws of the state of Nevada.
       Federal rules and regulations cannot extinguish property 
     which derives from state law.

[[Page E1887]]

     For the USFS to implement regulations under the Endangered 
     Species Act, Clean Water Act or any other federal authority, 
     which would divest citizens of their property is to trigger 
     claims for compensation by the affected citizens. For the 
     USFS to institute criminal action against Elko County for 
     exercising its lawful jurisdiction over the road and the land 
     adjacent to the Road is a usurpation of power upon which the 
     US Supreme Court has long since conclusively ruled.

     

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