[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

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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.

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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.