Amicus Curiae Brief — Naro v. Hamilton Township

| "ON FILED

JUL 1 4 1997

No. 96-1896

Supreme Court of the United States

—

October Term, 1997

CLIFF AND BERTHA GARDNER,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MOTION OF DAVID HAIGHT FOR LEAVE TO FILE

OUT-OF-TIME BRIEF AMICUS CURIAE IN SUPPORT

OF PETITION AND BRIEF AMICUS CURIAE

JOHN W. HOWARD

Counsel of Record

Attorney for Amicus Curiae

David Haight

625 Broadway

Suite 1206

San Diego, California 92101

(619) 234-2842

MOTION FOR LEAVE TO FILE LATE BRIEF

IN AMICUS CURIAE

Amicus Curiae hereby moves for permission to file his brief

untimely. His motion for same is based upon the fact that he

received no notice of the filing or docketing of the Petition for

Writ of Certiorari until shortly before the time for filing the

Brief in Amicus Curiae was due and too late for him to prepare

same on a timely basis.

The Petition for Writ of Certiorari was apparently filed on

May 27, 1997 and docketed on May 29, 1997. Notice thereof

is required to be sent to all interested parties. Amicus Curiae

did not receive notice of same until several days prior to the

date upon which his Brief herein was due. Although Amicus

Curiae is entitled, under the Rules, to thirty (30) days from the

date of docketing to file his brief he did not receive actual notice

of docketing until June 19, 1997, notice having been actually

mailed on June 14, 1997, according to the postmark.

It would not be fair to deny Amicus Curiae the right to file

his Brief in Amicus Curiae based upon this late notice and

Amicus Curiae therefore respectfully requests that this Honorable

Court grant leave for him to file his Brief late in light of the late

notice he received.

Respectfully submitted,

JOHN W. HOWARD

Counsel of Record

Attorney for Amicus Curiae

David Haight

625 Broadway

Suite 1206

San Diego, California 92101

(619) 234-2842

TABLE OF CONTENTS

Page

IE NON iia Fes css Fats vs beh eisiuedcces ii

Interest of Amicus Curiae ................ccceeees 1

IE 6 fee ose UES sauce Se ecbe ceri osee vk: 3

I. The Irrational Reasoning Of The Appeals Court 3

Il. The Flawed Position Of The Justice Department :

Ill. The Supremacy Clause .................. 6

ee re eee ree eee 7

V. The Equal Footing Doctrine .............. 10

VI. Congress’ Right To Take Land By Condemnation =

Vil. Congress Can Take Land By Reserving It . .. 13

Vill. The Reserving Of Lands Is A Taking ....... 15

SI os VA Gk ooo CW US Ee Verne eh da bcdves 17

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Block, Secretary of Agriculture v. North Dakota Board of

University and School Lands, 461 U.S. 273 (1983)

obew scan 2 sang ho eee sas odin eee Ww eaoane 15, 16

Charles Paul v. United States, 371 U.S. 245 (1962) .. 13

Coyle v. Smith, 221 U.S. 559 (1910) .............. 11, 12

Dred Scott v. Sanford, 60 U.S. 393 (1856) .......... “

Emil Grisar v. Irwin McDowell, 73 U.S. 363 (1867) . . 13

Harcourt v. Gaillard, 25 U.S. 523 (1827) .......... 9, 10

John E. Scott v. Charles P. Lattig, 227 U.S. 229 (1912)

PE Pe er ee a See AE EG OY Peg l 14

Kansas v. Colorado, 206 U.S. 46 (1906) ........... 6

Kleppe v. New Mexico, 426 U.S. 529 (1976) ........ 7,8

Light v. United States, 220 U.S. 523 (1911) ........ 8

Nixon v. Adminstrator of General Services, 443 U.S. 425

CIOET) nieces iabvcataueanunts santas ten 13

iii

Contents

Page

Phillips Petroleum Company and Cinque Bambini

Partnership v. Mississippi and Saga Petroleum U.S.

Inc., 484 U.S. 469 (1988) ........... cece eeeees 11, 12

Pollards Lessee v. Hagen, 44 (3 How.) U.S. 212 (1845)

Pe RE ee Ne ee ne ee EEE eee 3, 10

Samuel G. Wolcott v. The Des Moines Navigation and

Railroad Company, 72 U.S. 681 (1866) ......... id

Sioux Tribe of Indians v. United States,316 U.S.317

CPD iia a Sb ln KR GRASS Sha cae 14

United States v. Gettysburg Electric Railway Company,

ee Oe, OE OE oa 2h wa Rac uavun cee sedces 12, 13

United States v. Gratiot, 14 Pet. 526 (1840) ........ 8

United States v. Midwest Oil Company, 236 U.S. 459

SE ai. po ch abuin ss Ae hekan abet ances += 14

United States v. San Francisco, 310 U.S. 16 (1940) .. 8

United States of America v. James E. O’Donnell, 303

RE ne RED: ons Lig Chen aW\ 404 5 on we CAR oo 14

United States of America v. Texas, 339 U.S. 707 (1949)

Utah Division of State Lands v. United States, 482 U.S.

a a oe ire occ 11

iv

Contents

Page

United States Constitution Cited:

PRUETT, Bs GAT hs Kc nwa ca wbe Ska ekas in akskbs 6

RT Par OE, B ov vine cdbaestibunaseekds Seaeeke 7

id a gh i 6

Other Authorities Cited:

Public Lands Committee Report, 1832 ............. 4

Virginia Act of Cession, 1783 ..........cccccccess 10

1

INTEREST OF AMICUS CURIAE’

A member of the Lyon County Public Lands Planning

Commission, as Amicus Curiae, files this brief in support of the

position of Cliff Gardner and Bertha Gardner, Defendants-

Petitioners in this case.

The Lyon County Public Lands Planning Commission was

established by County Ordinance as an advisory Commission to

the County Commissioners. Its duty as the Public Lands Planning

Commission is to keep abreast of problem public lands issues and

activities and report the various problem areas back to the County

Commissioners. In addition, the Public Lands Planning

Commission is directed by the County Commission to investigate

and/or study selected problems related to public lands and report

its recommendations to the County Commissioners.

Each member of the Lyon County Public Lands Planning

Commission has contact with the people directly connected with

public land use, both Federal employees and users, on a continuous

basis. Being a member has resulted in a detailed understanding of

on-going controversies regarding public lands.

A large problem area connected with public lands is the so

called “land exchanges”. Information received from a “whistle

blower” revealed that there were secret meetings, being conducted

almost on a daily basis, in the Nevada state BLM office dealing

with a “land exchange”. In a subsequent meeting with the then

State Director of the BLM he was asked why this exchange was

not known by the public. His answer was “It is now.”.

The land exchange resulted in the selling of a small amount

of BLM land in the Las Vegz:s area, to be used by a land developer,

resulting in a large increase in the tax base of Clark County. The

money was then taken and used to purchase a large amount of

* Counsel for a party did not author this brief in whole or in part and no

person or entity, other than the amicus curiae, has made a monetary contribution

_ to the preparation or submission of the brief.

2

land in the Lake Tahoe area. This land had been slated for

development as a ski resort and residential area. The end result

was a huge loss to the tax base of Washoe and Douglas Counties.

Currently there is a “land exchange” in progress affecting Lyon

County, Douglas County, the BLM, the USFS and a developer.

The BLM will exchange a large amount of land, located in Lyon

County, to be used as an industrial park. This land has a very high

dollar value due to its intended use. A smaller amount of land to

be received by the BLM and USFS in the “land exchange” could

be classified as waste land.

On the surface it would appear that Lyon County was receiving

a “windfall” in this “land exchange”. However a small portion of

this “wasteland”, to become USFS land, is on the site of a

previously-proposed dam to be constructed onthe Walker River.

This dam could put the Federal Government in a position to possibly

control the water flow on the Walker River. Should this occur, it

could have a devastating effect on agriculture in Lyon County.

However, even if the dam scenario did not occur, the difference in

property dollar value would result in a large loss to the taxpayers.

This loss would result due to the large dollar value difference

between the two land parcels.

A second problem is the apparent lack of credibility and

accountability of Federal employees in their management of existing

public lands. On one occasion the Lyon County Public Lands

Planning Commission received data from a research corporation

showing that grazing allotments for sheep issued from the USFS

Bridgeport Ranger District, in the Humboldt-Toiyabe National

Forest, were drastically reduced approximately 60% over a given

time period. The Commission published these data. The Bridgeport

Ranger District disputed the figures and claimed the decrease was

only 6%. In a subsequent presentation made by the Bridgeport

Ranger District to the Public Lands Planning Commission, it was

shown, using their own data, that the decrease was approximately

50%. Later analysis showed the decrease to be closer to 60%.

3

The apparent lack of knowledge on behalf of the Federal

Government relative to the proper management of public lands is

obvious. It is time to rule that the position advanced by the

Defendants-Petitioners that a State holds title to the unappropriated

public lands within its external borders is a valid and proper legal

lecisi

ARGUMENT

I. THE IRRATIONAL REASONING OF THE APPEALS

COURT

The position taken by the lower court cannot stand. To come

to the conclusion that the original thirteen States and those States

have a sovereign claim to their lands that cannot be claimed by

other States, would make those other States unequal.

Indeed, various States were formed from a multitude of

different lands. There are three States that were formed from lands

lands. These States are Minnesota, Mississippi, and Alabama. In

the case of Alabama the vast majority of the State was made up

from land taken from the original territory and just a small portion

from land taken from the Louisiana Purchase. It is significant to

note that within that small portion of land from the Louisiana

Purchase lies the County and City of Mobile.

The Appeals Court in addressing the case, Pollards Lessee v. —

Hagen, 44 U.S. (3 How.) 212 (1845), takes the position that the

Supreme Court decision was based solely on land coming from

the States of Virginia and Georgia. And, therefore, Alabama had

this sovereign claim to the land. However the land in question in

the Pollards case was located within the City of Mobile. As

previously noted, the land which includes the City of Mobile comes

from the Louisiana Purchase not from the original States. This

alone would make the lower court reasoning fail.

4

To go on further, the Supreme Court in the case, United States

of America v. Texas, 339 U.S. 707 (1949), equates the States of

Texas, California, and Louisiana in respect to the Equal Footing

Doctrine. One would most certainly have to take the position that

Texas had at least the same or even higher sovereign claim to its

land as did the original thirteen States. Using this reasoning, the

states formed from land that comes from the Louisiana Purchase

and the treaty of Guadalupe Hidalgo have the same sovereign claim

to their lands as do the original States.

In looking at the State of New Mexico, its lands are made up

from the Texas Annexation, the Louisiana Purchase, and the treaty

of Guadalupe Hidalgo. Using the rational of the lower court, should

those lands in New Mexico that came from the treaty of Guadalupe

Hidalgo be treated differently from those lands that came from the

Texas Annexation and also differently from those lands that came

from the Louisiana Purchase? I think not. Again, the reasoning of

the lower court is not acceptable.

Congress recognized the claim to ownership of the

unappropriated lands by the various States in 1832. At that time

the Public Lands Committee of the United States Senate made a

formal report to the Senate and stated:

Our pledge would not be redeemed by

merely dividing the surface into states and

giving them names.

The public debt being now paid, the

public lands are entirely released from the

pledge they were under to that object, and

are free to receive a new and liberal

destination for the relief of the states in which

they lie.

Nearly one hundred million acres now

in market are the refuse of sales and

5

donations through a long series of years, and

are of very little actual value, and only fit to

be given to settlers or abandoned to the states

in which they lie.

The speedy extinction of the Federal title

within their limits is necessary to the

independence of the new states, to their equality

with the older states, to the development of

their resources, to the subjection of their soil,

taxation, cultivation and settlement, and to the

proper enjoyment of their jurisdiction and

sovereignty.

The ramified machinery of the Land Office

Department and the ownership of so much soil

extends the patronage and authority of the

General Government into the heart and corners

of the new states and subjects their policy to

the danger of a foreign and powerful influence.

To apply the thoughts of Congress stated above, one need

only to look at two states, Louisiana and Missouri. Louisiana was

admitted into the Union in 1812. Missouri was admitted into the

Union in 1821. Both States were formed from land that came

from the Louisiana Purchase. Both States were part of the Union

before 1832. Therefore Congress must have intended for them to

be included in the States that should receive ownership of all its

public lands. These were not States that came from the original

territory, as required by the lower court. Again, the lower courts

reasoning cannot stand.

The appeals court reasoning goes even further in that it takes

the position that the Federal Government held complete title to all

public lands in Nevada prior to statehood and that Nevada never

at any time had the same claim to title as did the original states.

Because of this the lower court takes the position that the Federal

6

Government has complete ownership and legislation over these

lands. If that were true there would be no need for Nevada to cede

any of these lands to the Federal Government for any reason. Does

that mean that Article I, § 8, cl. 17 of the United States Constitution

does not apply to the State of Nevada? Once again, I think not.

II. THE FLAWED POSITION OF THE JUSTICE

DEPARTMENT

The flawed position taken by the United States Justice

Department is the power given to Congress under the Property

Clause can be applied to the unappropriated public lands within

any State. The Justice Department also takes the flawed position

the Supremacy Clause operating in tandem with the Property

Clause gives the Federal Government supreme power over these

lands.

Ill. THE SUPREMACY CLAUSE

The Supremacy Clause, Art. VI, cl. 2 of the United States

Constitution reads in part, “This Constitution, and the laws of the

United States which shall be made in Pursuance thereof .. .”. As

such, in order for a Federal law to be supreme over a State law,

that Federal law must be within the confines or limits of the United

States Constitution. In defining the limits of the Supremacy Clause

the Court did so quite eloquently in Kansas v. Colorado, 206

U.S. 46 (1906). The Court found in this case that the reclamation

of arid lands not the property of the United States, nor situated

within the limits of a territory, was not comprehended in the grant

to Congress by the United States Constitution under the Property

Clause. The Court further found that State laws in respect to the

reclamation of arid lands cannot be overridden by Congress. Simply

stated, under the Supremacy Clause, if Congressional legislation

exceeds the power granted to Congress by the Constitution, that

legislation does not override State legislation.

Applying simple logic, if the power granted to Congress under

7

the Property Clause cannot be applied to the unappropriated public

lands within a State, the Supremacy Clause cannot be used to

enforce that power.

IV. THE PROPERTY CLAUSE

The Property Clause, Art. IV, § 3, cl. 2 reads as follows: “The

Congress shall have Power to dispose of and make all needed

Rules and Regulations respecting the Territory or other Property

belonging to the United States: and nothing in this Constitution

shall be construed as to Prejudice any Claims of the United States,

or af any particular state.”. (emphasis added.)

The cornerstone of the legal argument taken by the Justice

Department to establish the Federal Government ownership of the

unappropriated public lands is Kleppe v. New Mexico, 426 U.S.

529 (1976). In their legal position, the Justice Department has

misread this ruling. The judgment in the Kleppe case was a

declaratory judgment and was remanded back to the lower court.

Therefore, the judgment in Kleppe is the law of the land, it is the

opinion of the Court to be applied solely to the issue in the case

and directed only at the two litigants. The ruling of the Court did

not require the two litigants to do anything. In the Kleppe case the

issue was stated by the Court as, “At issue in this case is whether

Congress exceeded its powers under the Constitution in enacting

the Wild Free-Roaming Horses and Burros Act.”. The issue in the

Kleppe case was Congress’ power to enact legislation, not the

constitutionality of the legislative act itself.

The issue in the Kleppe case is not about wild horses and

burros, it is not about the Property Clause, and it is not about

public lands. The issue in the Kleppe case establishes Congress’

Constitutional right to enact any legislation, however, once that

legislation is enacted, constitutionality can be challenged in court.

The Court stated in its opinion in the Kleppe case, “In answering

this question, we must remain mindful that, while courts must

eventually pass upon them, determinations under the Property

Clause are entrusted primarily to the judgment of Congress.”.

The Court goes on to say in the Kleppe case, “Absent consent

or cession a State undoubtedly retains jurisdiction over federal

lands within its territory, but Congress equally surely retains the

power to enact legislation respecting those lands pursuant to the

Property Clause.”. The reading of this dicta cannot be construed

in any way other than the State has jurisdiction over the public

lands. But what does the Court say about Congress? The Court

says that Congress may enact legislation. Nowhere in the Kleppe

case does the Court say that the power granted to Congress under

the Property Clause can be applied to the public lands in the State

of New Mexico. No where in the Kleppe case does the Court say

that the Federal Government has control over the public lands.

The portion of the Courts opinion in the Kleppe case that the

Justice Department has misread or misinterpreted reads as follows:

“And while the furthest reaches of the power granted by the Property

Clause have not yet been definitely resolved, we have repeatedly

observed that ‘[t]he power over the public lands entrusted to

Congress is without limitations.’ ”. This statement is completely

correct. In making the statement the Court cites from United States

v. San Francisco, 310 U.S. 16 (1940); Light v. United States, 220

U.S. 523 (1911) and United States v. Gratiot, 14 Pet. 526 (1840).

The Gratiot case is the origin of this position and dealt with

the State of Illinois. When Illinois was still a part of the original

Territory, and before it became a state, the Federal Government

issued lead mine leases. When Illinois became a State, Illinois laid

claim to all of the land within its external boundaries and also

claimed the leases. The Court rejected the second claim on the

basis that the lead mine leases were issued while Illinois was still

part of a territory and before it became a State. The Court said,

“The term ‘territory’ as here used, is merely descriptive of one

kind of property, and is the equivalent to the words ‘lands’. And

Congress has the same power over it as any other property

9

belonging to the United States; and this power is vested in Congress

without limitations, and has been considered the foundation upon

which the territorial governments rest.” Clearly the power given to

Congress under the Property Clause is applicable to a territory and

not to a State.

Restriction of the power of the Property Clause to a territory

is defined in Dred Scott v. Sanford, 60 U.S. 393 (1856). After the

Revolutionary War, the thirteen colonies were in fact thirteen

sovereign nations. They won their independence and in addition

they won all of the unappropriated territory west of them to the

Mississippi River. While the seven western colonies Claimed that

land, the six eastern colonies took the position that all of the colonies

won the land in the course of the Revolutionary War, and that each

colony had a claim to it. All the colonies finally agreed they would

cede this land to the newly to-be-formed Confederation in order to

pay off the debt of the Revolutionary War. They could do this

because they were in fact thirteen sovereign nations. However,

once this new Confederation was formed, each State lost a small

piece of its sovereignty. A legal vehicle was therefore needed to

carry out this agreement. That legal vehicle was the Property Clause,

put into the Constitution specifically to Carry out this agreement.

In the Dred Scott case, the Court states in part, “It was intended for

a specific purpose, to provide for the things we have mentioned. It

was to transfer to the new government the property then held in

common by the States, and to give to that government power to

apply it to the objects for which it has been destined by mutual

agreement among the States before their league was dissolved. It

applied only to the property which the States held in common at

that time, and has no reference whatever to any territory or other

property which the new sovereignty might afterwards itself acquire.”

Quite clearly, the power granted to Congress by the Property Clause

is only applicable to a territory and is not applicable to any State.

Dred Scott goes on further in citing Harcourt v. Gaillard, 25 U.S.

523 (1827). After the signing of the Declaration of Independence,

Great Britain made a land grant located within what is now Florida.

Both South Carolina and Georgia laid claim to this land. The

10

Federal Government also claimed the land. The Court stated in the

Harcourt case, “There was no territory within the United States

that was claimed in any other right than that of some one of the

confederate states; therefore, there could be no acquisition of

territory made by the United States distinct from, or independent

of some one of the states.” Clearly, the Federal Government is

restricted in its owning of public lands.

V. THE EQUAL FOOTING DOCTRINE

The Title to all unappropriated public lands within each State

passed to that State upon its admission to the Union under the

Equal Footing Doctrine. This doctrine was upheld in Pollards

Lessee v. Hagen. In the Pollards case the Court states, “And the

statute passed by Virginia authorizing her delegates to execute this

deed, and which is recited in it, authorized them, in behalf of the

State, by a proper deed to convey to the United States, for the

benefit of said states, all the right, Title, and claim, as well of soil as

jurisdiction, . . .” (emphasis added). The Court further states, “when

the United States accepted the cession of the territory, they took

upon themselves the trust to hold the municipal eminent domain

for the new states, and to invest them with it, to the same extent, in

all respects, that was held by the states ceding the territories,”

(emphasis added).

Again applying simple logic, if the original States passed Title

to the Federal Government, they had to have held Title, you cannot

give away something you do not have. Therefore when the new

States entered the Union on an equal basis in all the same respects

as the original States the new States gained Title to all the

unappropriated public lands within their external boundaries. The

Court further states in Pollards, “We think a proper examination of

this subject will show, that 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.”

In reading directly from the Virginia Act of Cession — 1783,

11

the Virginia Legislature states, “all right, title, and claim as well of

soil as jurisdiction, which this commonwealth hath to the territory

or tract of country within the limits of the Virginia charter, ... :

and that the States so formed shall be distinct republican States,

and admitted members of the Federal Union, having the same

rights of sovereignty, freedom, and independence as the other

States”.

It is quite evident that the intent of the Virginia Legislature

was to pass on to any and all States formed from the ceded territory

all rights held by Virginia. This most certainly includes the right

to claim Title to all lands, both wet and dry, that are within the

external boundaries of the newly formed states.

The Equal Footing Doctrine was upheld in its entirety in Coyle

v. Smith, 221 U.S. 559 (1910). The Coyle case dealt with the

location of the state capital of Oklahoma, and the Court Stated,

“on her admission, she at once became entitled to and possessed of

all rights of dominion and sovereignty which belonged to the

original States.” This dicta indicates that a State gains Title to all of

the unappropriated public lands within its external boundaries upon

admission into the Union, to the same extent, that the original

States held Title to the lands within their external boundries.

In a later case, Utah Division of State Lands v. United States,

482 U.S. 193 (1987), the Court states, “Because all subsequently

admitted States enter the Union on a ‘equal footing’ with the

original thirteen States, they too hold Title to the land under

navigable waters within their boundaries upon entry into the

Union.” (emphasis added).

In the Phillips Petroleum Company and Cinque Bambini

Partnership v. Mississippi and Saga Petroleum U.S. Inc., 484 U.S.

469 (1988), the Court ruled that all lands under water subject to

the ebb and flow of the tide, regardless of whether such waters are

navigable, are within the public trust given to the States upon their

entry into the Union. The question asked in Phillips did not deal

12

with land beneath navigable waters, but with tidelands. Phillips

further upheld the Equal Footing Doctrine in that it did not limit

title to land under navigable waters and is in complete compliance

with Pollards and Coyle.

However, in the dissenting opinion of that case, it was brought

out that 150 years of title chain must be considered. This is most

certainly a valid concern. However it is only necessary to follow

the multitude of court decisions that have granted the Federal

Government the right to reserve lands for many different purposes.

That granting of power makes valid any claim to title by an

individual obtaining land as a result of the Federal Government

reserving that land.

VI. CONGRESS’ RIGHT TO TAKE LAND BY

CONDEMNATION

Congress has the right to take land by condemnation under

the General Welfare Clause. This right was brought forward in

United States v. Gettysburg Electric Railway Company, 160 U.S.

668 (1895). The Gettysburg case dealt with the taking of land,

owned by a railroad, in order to preserve the battlefield of

Gettysburg for the good of the nation as a whole.

In the Gettysburg case the Court states, “It is, of course, not

necessary that the power of condemnation for such purpose be

expressly given by the Constitution. The right to condemn at all is

not so given. It results from the powers that are given, and it is

implied because of its necessity, or because it is appropriate in

exercising those powers. Congress has power to declare war and

to create and equip armies and navies. It has the great power of

taxation to be exercised for the common defense and general

welfare.” The Court goes on to say, “Such a use seems necessarily,

not only a public use, but one so closely connected with the welfare

of the Republic itself as to be within the powers granted Congress

by the Constitution for the purpose of protecting and preserving

the whole country.”

13

This holding was observed in Nixon v. Administrator of

General Services, 433 U.S. 425 (1977). In that case the Court

states, “Similarly, Congress’ interest in and expansive authority to

act in preservation of monuments and records of historical value

to our national heritage are fully established. United States v.

Gettysburg Electric R. Co., 160 U.S. 668.” The right of Congress

to take land by condemnation is further illustrated in Charles Paul

v. United States, 371 U.S. 245 (1962). In the Paul case the Court

States, “The power of the Federal Government to acquire land

within a State by purchase or by condemnation without the consent

of the State is well established. Kohl v. United States, 91 U.S. 367,

371, 23 L. Ed. 449, 451. But without the States ‘consent’ the

United States does not obtain the benefits of Art. I, § 8, cl. 17, its

possession being that of an ordinary proprietor.” This decision

clearly limits the Federal Government in its power to regulate lands

that it has taken by condemnation or by reserving them. Those

lands are subject to state legislation.

When Congress acted to take the land in the Gettysburg case

by condemnation, it was in fact a true “taking”. The Federal

Government had to pay the railroad just compensation for the

land it lost.

Vil. CONGRESS CAN TAKE LAND BY RESERVING IT

Congress can also acquire land by reserving it. This was shown

in the case of Emil Grisar v. Irwin McDowell, 73 U.S. 363 (1867).

Grisar is a San Francisco case and dealt with San Francisco’s right

to select four square leagues of land of its choice. This right was

obtained by San Francisco by Mexican law that was in effect at the

time of conquest by the United States. That law allowed any pueblo

to select any four square leagues of land of its choice.

The United States however desired a portion of the land

selected by San Francisco to be used for a gun emplacement.

Therefore that portion of the land to be used was withdrawn from

the allowed four square leagues of land and another piece of land

substituted.

In justifying its position the Court said, “Until this was done,

14

the government was not precluded from setting apart and

appropriating any portions of lands claimed, which might be

necessary for public uses.” (emphasis added.) The Court further

states, “But further than this: from an early period in the history of

the government it has been the practice of the president to order,

from time to time, as the exigencies of the public service required,

parcels of land belonging to the United States to be reserved from

sale and set apart for public uses.”

There are a large number of cases dealing with the right of the

Federal Government to reserve lands; Samuel G. Wolcott v. The

Des Moines Navigation and Railroad Company, 72 U.S. 681

(1866); United States v. Midwest Oil Company, 236 U.S. 459

(1914); United States of America v. James E. O’ Donnell, 303 U.S.

501 (1937); Sioux Tribe of Indians v. United States, 316 U.S. 317

(1941). These cases deal with a wide variety of land types and

land uses. However the conclusion to be drawn from all these

cases is that the Federal Government can, and has, in fact reserved

large amounts of public lands for the general welfare of the nation

as a whole. The Court has consistently upheld the Federal

Government’s right in the reserving of those lands.

This is also true in the case of John E. Scott v. Charles P.

Lattig, 227 U.S. 229 (1912). In that case the dispute was over

islands in a navigable river. Both the State and the Federal

Government claimed ownership of the islands. The Court ruled in

favor of the Federal Government. This was of course correct.

Indeed, it can be seen that all lands condemned or reserved by

the Federal Government was allegedly done so for the general

welfare of the nation as a whole. National Forests were reserved to

supply a continuous supply of lumber for the nation. President

Clinton in his recent taking of 1.7 million acres of land from the

state of Utah, allegedly did so for our children and our

grandchildren. The Federal Government can claim ownership of

such lands, but when it does so it becomes a taking. That ownership

is merely that of an ordinary proprietor.

15

VIII. THE RESERVING OF LANDS IS A TAKING

Since Title and not possession of all unappropriated public

lands passed to the States, under the Equal Footing Doctrine, upon

their entry into the Union, they have an absolute claim of title to

any lands condemned or reserved by the Federal Government. Yet

again applying simple logic, since title to all unappropriated public

lands passed to the States upon statehood, but the Federal

Government has the right to reserve some of those lands for public

use, the reserving of those lands becomes a taking.

This reasoning is supported in Block, Secretary of Agriculture

v. North Dakota Board of University and School Lands, 461 U.S.

273 (1983). In the Block case Congress claimed ownership to lands

under a then non-navigable river. North Dakota Claimed the river

was navigable at the time North Dakota entered the Union and

therefore title passed to North Dakota under the Equal Footing

Doctrine. The Court held that the 12 year statute of limitations of

the Quite Title Act was applicable to a State as well as it is to all

others. The Court therefore ruled in favor of the United States.

The Court however does state in the opinion of the Block

case:

The State probably is correct in Stating that

Congress could not, without making

provision for payment of compensation, pass

a law depriving a State of land vested in it

by the Constitution. Such a law would not

run afoul of the equal-footing doctrine or

the Tenth Amendment, as asserted by North

Dakota, but would constitute a taking of the

State’s property without just compensation,

in violation of the Fifth Amendment. Section

2409a(f), however, does not purport to strip

any State, or anyone else for that matter, of

any property rights. . . . If a claimant has title

16

to a disputed tract of land, he retains title

even if his suit to quiet his title is deemed

time-barred under § 2409a(f). A dismissal

pursuant to § 2409a(f) does not quiet title

to the property in the United States. The title

dispute remains unresolved. Nothing

prevents the claimant from continuing to

assert his title, in hope of inducing the United

States to file its own quiet suit, in which the

matter would finally be put to rest on the

merits.

Although the holding in the Block case dealt with the

applicability of the statute of limitations in the Quite Title Act to a

State, the reasoning by the Court relative to “taking” is applicable

to any act of Congress. The act of Congress could be the establishing

of a National Forest, reserving a wilderness area, or any number of

acts dealing with the reserving of lands and could result in a

“taking”, provided title to those lands passed to the State under

the Equal Footing Doctrine. Congress certainly has the power to

reserve lands, but when Congress does so, Congress must pay the

State just compensation for the taking of those lands.

The Court has not ruled on all types of lands the Federal

Government can or cannot reserve. The Court also has not ruled

on what amounts of land the Federal Government can or cannot

reserve. Until such time as the Court makes these rulings, the

questions must remain unanswered.

17

CONCLUSION

For all of the reasons stated above, Amicus Curiae respectfully

requests this Honorable Court to reverse the decision of the appeals

court and grant the relief sought by Cliff Gardner and Bertha

Gardner.

Respectfully submitted,

JOHN W. HOWARD

Counsel of Record

Attorney for Amicus Curiae

David Haight

625 Broadway

Suite 1206

San Diego, California 92101

(619) 234-2842