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United States v. Gardner



In 1988 the Forest Service issued Clifford and Bertha Gardner a ten-year permit allowing the Gardners to graze their cattle on portions of the Humboldt National Forest. In 1992 a fire burned over 2000 acres of land in the national forest. The Forest Service and Nevada Department of Wildlife reseeded much of the burned area and informed the Gardners that the area would be closed to grazing for two years. The Gardners complied with the Forest Service instructions for one year and then resumed grazing on the burned area in 1994. The Forest Service advised the Gardners that they were violating the terms and conditions of their grazing permit and instructed them to remove the cattle from the burned areas. When the Gardners refused, the Forest Service revoked their permit.

The federal government then sued for injunctive relief to halt unauthorized grazing by the Gardner’s livestock on U.S. Forest Service lands in Nevada. The Gardners argued that Nevada was the rightful owner of these public lands, not the federal government. The district court granted the United States’ motion for summary judgment and enjoined the Gardners from further unauthorized grazing. The Gardners appealed. The Ninth Circuit held that the federal government was authorized to retain public lands for its own purposes, and was not required to hold land acquired from Mexico in 1848 for the establishment of future states. The Ninth Circuit also found that the Equal Footing Doctrine did not operate to give Nevada title to the public lands within its boundaries, and that federal ownership of public lands did not encroach upon the core powers reserved for the states under the Tenth Amendment.

The Gardners argued that when the United States received the land in question from Mexico in the Treaty of Guadalupe Hidalgo in 1848, the government had a duty to hold that land in trust for the creation of future states and was not authorized to retain the land for its own use. The Gardners argued that when Nevada became a state, all public lands within its boundaries reverted to the state. The Gardners based their argument on Pollard’s Lessee v. Hagan,[1] an 1845 case that dealt with land the United States acquired from the thirteen original states. Virginia and Georgia ceded land to the United States to discharge debt incurred during the Revolutionary War, and the Supreme Court determined that this land was held in trust for the establishment of future states. The Ninth Circuit distinguished the Gardners’ case from Pollard’s Lessee. While the original thirteen colonies had independent claims to sovereignty preceding statehood, Nevada had no such claim. Because the federal government was the initial owner of the land that later became Nevada, the Ninth Circuit concluded that the reasoning of Pollard’s Lessee did not apply.

The Ninth Circuit held that because the United States has held title to the unappropriated lands in Nevada since Mexico ceded the land in 1948, the land belongs to the United States. Therefore, the Property Clause of the United States Constitution applied to the land.[2] The Property Clause provides that Congress has the power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”[3] Because the Supreme Court has repeatedly construed the Property Clause as an expansive and limitless power, the Ninth Circuit held that the United States had the power to administer federal lands in Nevada any way it chose, and therefore had the ability to establish a national forest system.

The Ninth Circuit then addressed the Gardners’ argument under the Equal Footing Doctrine, which requires that upon admission to the Union, a new state possess the same powers of sovereignty and jurisdiction as did the original thirteen states. The Gardners argued that Nevada was not on equal footing because the federal government owns over eighty percent of the land in the state, and that the state must have title and eminent domain of all lands within its boundaries in order to satisfy the Equal Footing Doctrine. In Pollard’s Lessee, the Supreme Court discussed the meaning of the Equal Footing Doctrine and held that the shores of and land beneath navigable waters were reserved to the states, and were not granted to the federal government by the Constitution.[4] The Ninth Circuit concluded that because the Supreme Court has not extended the Equal Footing Doctrine to “fast dry land,”[5] the federal lands in question were not reserved for the state of Nevada.

Additionally, the Ninth Circuit noted that the purpose of the Equal Footing Doctrine was to establish equality among the states with regards to sovereignty and political standing. The mere fact that some states have federal lands within their boundaries while others do not, and that this disparity may cause economic differences between the states, does not mean such diversity in any way limits a state’s political rights and sovereignty. Because the Equal Footing Doctrine applies only to sovereignty and political rights, and because it attaches primarily to lands beneath navigable waters, the Ninth Circuit rejected the Gardner’s argument that the doctrine should operate to give Nevada title to the public lands within its boundaries.

The Ninth Circuit then turned to the Gardners’ challenge of Nevada’s “Disclaimer Clause.”[6] This provision of the Nevada Statehood Act of 1864 promised that Nevada would disclaim all rights to the unappropriated public lands lying within its boundaries, and that such land would remain at the sole disposition of the United States.[7] The Gardners argued that Nevada could not give the United States title to public lands through the disclaimer clause because such clauses are declaratory and confer no new right or power upon the United States. The Ninth Circuit agreed that the disclaimer clause was declaratory but found that this was irrelevant because the United States already had title to the lands through the Treaty of Guadalupe Hidalgo. The disclaimer clause was not a grant of title from Nevada to the United States, but a recognition of the federal government’s preexisting title.

Finally, the Ninth Circuit addressed the Gardners’ Tenth Amendment claim that federal ownership of public lands in Nevada invades the core powers reserved to the state of Nevada, such as police powers. The court referred to Kleppe v. New Mexico,[8] where the Supreme Court concluded that a state retains civil and criminal jurisdiction over federal lands within its boundaries so long as it exercises its power in a manner that does not conflict with federal law.[9] The Ninth Circuit concluded that the state of Nevada was not being unconstitutionally deprived of the ability to police the lands within its borders and could exercise jurisdiction over federal lands so long as its exercise of power did not conflict with federal law.

[1]44 U.S. (3 How.) 212 (1845).

[2]U.S. Const. art. IV, § 3, cl. 2.


[4]Pollard’s Lessee, 44 U.S. (3 How.) at 212.

[5]Scott v. Lattig, 227 U.S. 229, 244 (1913) (holding that title to an island within a stream did not pass from the United States to the state of Idaho).

[6]Nevada Statehood Act of March 21, 1864, § 4, 13 Stat. 30, 31.


[8]426 U.S. 529 (1976).

[9]Id. at 543.

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