WESTERN LEGAL HISTORY THE JOURNAL OF THE NINTH JUDICIAL CIRCUIT HISTORiCAL SOCIETY VOLUME 1, NUMBER 2 SUMMER/FALL 1988 Western Legal History is published semi-annually, in spring and fall, by the Ninth Judicial Circuit Historical Society, P.O. Box 2558, Pasadena, California 91102-2558, (818) 405-7059. The journal explores, analyzes, and presents the history of law, the legal profession, and the courts - particularly the federal courts - in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. Western Legal History is sent to members of the Society as well as members of affiliated legal historical societies in the Ninth Circuit. Membership is open to all. Membership dues (individuals and institutions): Patron, $1,000 or more; Steward, $750-$999; Sponsor, $500-$749; Grantor, $250-$499; Sustaining, $100-$249; Advocate, $50-$99; Subscribing (non- members of the bench and bar, attorneys in practice fewer than five years, libraries, and academic institutions), $25-$49. Membership dues (law firms and corporations): Founder, $3,000 or more; Patron, $1,000-$2,999; Steward, $750-$999; Sponsor, $500-$749; Grantor, $250-$499. For information regarding membership, back issues of Western Legal History, and other Society publications and programs, please write or telephone. POSTMASTER: Please send change of address to: Western Legal History P.O. Box 2558 Pasadena, California 91102-2558. Western Legal History disclaims responsibility for statements made by authors and for accuracy of footnotes. Copyright 1988 by the Ninth Judicial Circuit Historical Society. ISSN 0896-2189. The Editorial Board welcomes unsolicited manuscripts, books for review, reports on research in progress, and recommendations for the journal. Manuscripts (two copies) should be sent to Western Legal History, P.O. Box 2558, Pasadena, California 91102-2558. Texts, including quotations and footnotes, must be double-spaced. Footnotes must be numbered consecu- tively and should appear in a separate section at the end of the text. Authors are encouraged to follow the style for citations used in this journal. Manuscripts that are no more than thirty pages in length, not counting notes, charts and tables, and photographs, are preferred. Also preferred are manuscripts not concurrently under consideration by another journal. Communication with the Editor, Western Legal History, is encouraged prior to the submission of any manuscript. At that time, other guidelines for the preparation and publication of an article may be discussed. Consultation upon punctuation, grammar, style, and the like is made with the author, although the Editor and Editorial Board are the final arbiters of the article's appearance. Articles appearing in this journal are abstracted and indexed in HISTORICAL ABSTRACTS and AMERICA: HISTORY AND LIFE. NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY BOARD OF DIRECTORS HON, JAMES R. BROWNING EDWARD J. McANIFF, ESQ. Chairman Los Angeles San Francisco MOLLY MUNGER, ESQ. LEONARD 5 JANOFSKY, ESQ Los Angeles President SMITHMOORE P. MYERS, ESQ. Santa Monica Spokane JOHN A. SUTRO, SR., ESQ. KENNETH M. NOVACK, ESQ. Vice President Portland San Francisco HON, ROBERT E PECKHAM C.F DAMON, JR., ESQ. San Francisco Secretary-Treasurer CHARLES B. RENFREW, ESQ. Honolulu San Francisco J. DAVID ANDREWS, ESQ. HON. PAUL G. ROSENBLATT Seattle Phoenix ORVILLE A. ARMSTRONG, ESQ. FRANK ROTHMAN, ESQ. Los Angeles Los Angeles LEROY J. BARKER, ESQ, JOHN N. RUPP, ESQ, Anchorage Seattle THOMAS D. BEATTY, ESQ. HON. HAROLD L. RYAN Las Vegas Boise JEROME I. BRAUN, ESQ. JOHN L. SCHWABE, ESQ. San Francisco Portland HON, JAMES M. BURNS GARVIN E SHALLENBERGER, ESQ. Portland Costa Mesa CHRISTINE SWENT BYRD, ESQ. DONALD C. SMALTZ, ESQ. Los Angeles Los Angeles HON. JAMES DUKE CAMERON GERALD K. SMITH, ESQ. Phoenix Phoenix BARBARA A. CAULFIELD ESQ. HON. JOSEPH T SNEED San Francisco San Francisco ALLAN E. CHARLES, ESQ. JULIEN G. SOURWINE, ESQ. San Francisco Reno GEORGE W. COOMBE, JR., ESQ. HON. GORDON THOMPSON, JR. San Francisco San Diego GEORGE C. DALTHORP, ESQ. WILLIAM W. VAUGHN, ESQ, Billings Los Angeles WILLIAM E. DAVIS, ESQ. VICTOR A. VILAPLANA, ESQ. San Francisco San Diego MORRIS M. DOYLE, ESQ. CHARLES S. VOGEL, ESQ. San Francisco Los Angeles JAMES C. GARLINGTON, ESQ. ROBERTS. WARREN, ESQ. Missoula Los Angeles HON. ALFRED T GOODWIN Pasadena BOARD MEMBERS EMERITUS HON. WILLIAM P. GRAY Los Angeles JOSEPH A. BALL, ESQ. SHIRLEY M. HUFSTEDLER, ESQ. Long Beach Los Angeles HON. RICHARD H. CHAMBERS ELWOOD S. KENDRICK, ESQ. Tucson Los Angeles VINCENT CULLINAN, ESQ. HON. SAMUEL P. KING San Francisco Honolulu JOHN GAVIN, ESQ. JAMES P. KLEINBERG, ESQ. Yakima San lose HORTON HERMAN, ESQ. THEODORE A. KOLB, ESQ. Spokane San Francisco HON. WILLIAM J. JAMESON FREDERICK K. KUNZEL, ESQ. Billings San Diego HON. JOHN E KILKENNY ALBERT R. MALANCA, ESQ. Portland Tacoma SHARP WHITMORE, ESQ. MARCUS MATTSON, ESQ. San Diego Los Angeles CHET ORLOFF Executive Director WESTERN LEGAL HISTORY CHET ORLOFF, Editor YVETTE BERTHEL, Assistant Editor EVELYN K. BRANDT, Copy Editor and Indexer EDITORIAL BOARD REX ARMSTRONG, Esq., R. JAMES MOONEY Portland University of Oregon Law School JUDITH AUSTIN JAMES M. MURPHY, Esq. Idaho State Historical Society Tucson GORDON M. BAKKEN CLAUS-M. NASKE, California State University, University of Alaska, Fairbanks Fullerton PETER NYCUM MICHAL R. BELKNAP Northwestern School of Law, California Western School of Law Lewis and Clark College HON. JAMES R. BROWNING KENNETH O'REILLY, Circuit Judge, U.S. Court of University of Alaska, Anchorage Appeals for the Ninth Circuit PAULA PETRIK ERIC A. CHIAPPINELLI University of Maine School of Law, University of JOHN PHILLIP REID Puget Sound School of Law, New York LAWRENCE M. FRIEDMAN University Stanford Law School RAY REYNOLDS CHRISTIAN G. FRITZ Editor, CaliforniaLawyer University of New Mexico HARRY SCHEIBER School of Law Boalt Hall, University of HON. ALFRED T GOODWIN California Chief Judge, U.S. Court of MOLLY SELVIN, Ph.D. Appeals for the Ninth Circuit Santa Monica ROBERT W GORDON CHARLES H. SHELDON Standard Law School Washington State University MICHAEL GRIFFITH CAROLINE P. STOEL Archivist, U.S. District Court, Portland State University Northern District of California STEPHEN L. WASBY JAMES W HULSE State University of New York, University of Nevada, Reno Albany LOUISE LaMOTHE, Esq. SHARP WHITMORE, Esq. Los Angeles San Diego DAVID J. LANGUM JOHN R. WUNDER Cumberland School of Law, University of Nebraska Samford University MARI J. MATSUDA Richardson School of Law, University of Hawaii CONTENTS Dedication: The Honorable James R. Browning By Hon. Anthony M. Kennedy, Hon. Alfred T Goodwin, Hon. Robert E Peckham, and John A. Sutro, Sr. 131 Making Law in the Great Basin: The Evolution of the Federal Court in Nevada, 1855-1905 By James W Hulse 135 The Shaky Beginnings of Alaska's Judicial System By Claus-M. Naske American Mining Law and the Environment: The Western Experience By Gordon M. Bakken The Imagery of Injustice at Mussel Slough: Railroad Land Grants, Corporation Law, and the "Great Conglomerate West" By David J. Bederman The Spoken Word: Oral History in the Ninth Circuit By Chet Orloff, Yvette Berthel, Rick Harmon, and Hon. Gus Solomon 271 Articles of Related Interest 285 Report on the Ninth Judicial 289 Circuit Historical Society 2O9 Membership 293 Cover Photograph: The men of the Chollar Mine, Virginia City, Nevada, Ca. 1880. (Huntington Library) Judge James R. Browning United States Court of Appeals, Ninth Circuit Appointed 1961; Chief Judge 1976-1988 DEDICATION: JUDGE JAMES R. BROWNING THE HONORABLE ANTHONY M. KENNEDY, ASSOCIATE JUSTICE SUPREME COURT OF THE UNITED STATES jm Browning has given twenty-seven years of dedicated service to the Ninth Circuit as one of its judges, a splendid achievement in forty-two years of nearly continuous public service. The position of chief judge is not an honorary title. By law the chief judge is responsible for the administration of the courts in his circuit. Easily enough said. The Ninth Circuit as an institution comprises over 150 jurists and hears and decides more cases and more appeals than any other circuit in the country. Although he is aided in the task by councils and committees drawn from all of these judges, it is the Chief who is the focal point for the stream of decisions regarding equipment, budgets, schedules, illnesses, and substitutes; not to mention the decisions he must make with regard to staff personnel matters, the work he must coordinate with various state and federal agencies, his responsibilities under various federal laws including the Judicial Conduct and Disability Act and the Speedy Trial Act, and his membership on the Judicial Conference of the United States. Additionally, in the Ninth Circuit, the chief judge presides over every en bane hearing. Formal structures, however, can carry us only so far, In the last analysis, the prestige and judicial reputation of a court as an institution depend upon the character of judges to whom judicial responsibility is entrusted. The chief judge's own temperament and judicial bearing set the standard for every judge in the circuit. Chief Judge Chambers, Jim's predecessor, understood the impor- tance of ensuring that each individual judge in the Ninth Circuit was confident of his or her own independence in determining how best to discharge judicial duties. Jim Browning built upon and strengthened this Ninth Circuit tradition, and did so during a time when the dramatic expansion of the case load might well have led a less imaginative and committed man to go in the opposite direction. He has shaped the institution that is the Ninth Circuit into a refined and powerful judicial entity without permitting a 132 WESTERN LEGAL HISTORY VOL. 1, NO. 2 bureaucracy to stifle judicial character or independence. With his warmth, good sense, and devotion to the law, Jim Browning was the right person, in the right place, at the right time. Jim has served this circuit with a dedication that is exemplary in all respects. I am fortunate to have served with so fine a jurist, to have learned from so fine an administrator, and to have so admirable and close a friend.