What is the law of the land when it comes to public lands in Nevada?

Cliven Bundy. (Getty Images)

Now that the federal standoff with Cliven Bundy over his grazing cattle on public lands without paying grazing fees is at a hiatus, perhaps it is time to once again look at a couple of aspects of the legal arguments.

Bundy claims the federal government is wrongly claiming land that should be controlled by the state of Nevada and/or Clark County.

He lost that argument in federal court when Judge Lloyd George ruled against all his arguments by citing findings in a similar case out of Elko County by the 9th U.S. Circuit Court of Appeals. The court ruled against rancher Clifford Gardner who had been running cattle on Forest Service land without paying a grazing fee. He was told to keep cattle off the land for a certain period after a wildfire.

Here is a footnote from that case:

“Gardners point out that Nevada recently passed a statute claiming ownership over all public lands within its boundaries, Nev.Rev.Stat. 321.5973. Gardners claim that the passage of this law further demonstrates that title to the public lands in Nevada properly rests in the state, not the federal, government. Gardners fail to note, however, that the Nevada statute by its own terms excludes national forest lands from the public lands claimed by Nevada.   See Nev.Rev.Stat. § 321.5963.”

Yes, the statute excluded “congressionally authorized national parks, monuments, national forests or wildlife refuges.”

But Bundy is grazing his cattle on BLM land. Whether that would have made a difference to the 9th Circuit is unknown.

In 1996, more than 56 percent of Nevada voters agree to remove from the state Constitution the so-called Disclaimer Clause under which the residents of the territory agreed to essentially deed all unappropriated land inside the future state to the federal government, though it said that land “shall be sold,” with 5 percent of proceeds going to the state.

Here is what was voted on in 1996. Note the portion with the strike-through:

SENATE JOINT RESOLUTION – Proposing to amend the ordinance of the Nevada constitution to repeal the disclaimer of interest of the state in unappropriated public lands.

WHEREAS, The State of Nevada has a strong moral claim upon the public land retained by the Federal Government within Nevada’s borders; and

WHEREAS, On October 31, 1864, the Territory of Nevada was admitted to statehood on the condition that it forever disclaim all right and title to unappropriated public land within its boundaries; and

WHEREAS, Nevada received the least amount of land, 2,572,478 acres, and the smallest percentage of its total area, 3.9 percent, of the land grant states in the Far West admitted after 1864, while states of comparable location and soil, including Arizona, New Mexico and Utah, received approximately 11 percent of their total area in federal land grants; and

WHEREAS, The State of Texas, when admitted to the Union in 1845, retained ownership of all unappropriated land within its borders; and

WHEREAS, The federal holdings in the State of Nevada constitute 86.7 percent of the area of the state, and in Esmeralda, Lincoln, Mineral, Nye and White Pine counties the Federal Government controls from 97 to 99 percent of the land; and

WHEREAS, The federal jurisdiction over the public domain is shared among several federal agencies or departments which causes problems concerning the proper management of the land and disrupts the normal relationship between a state, its residents and its property; and

WHEREAS, The intent of the framers of the Constitution of the United States was to guarantee to each of the states sovereignty over all matters within its boundaries except for those powers specifically granted to the United States as agent of the states; and

WHEREAS, The exercise of dominion and control of the public lands within the State of Nevada by the United States works a severe, continuous and debilitating hardship upon the people of the State of Nevada; now, therefore, be it

RESOLVED BY THE SENATE AND ASSEMBLY OF THE STATE OF NEVADA, JOINTLY, That the ordinance of the constitution of the State of Nevada be amended to read as follows:

In obedience to the requirements of an act of the Congress of the United States, approved March twenty-first, A.D. eighteen hundred and sixty-four, to enable the people of Nevada to form a constitution and state government, this convention, elected and convened in obedience to said enabling act, do ordain as follows, and this ordinance shall be irrevocable, without the consent of the United States and the people of the State of Nevada:

First.  That there shall be in this state neither slavery nor involuntary servitude, otherwise than in the punishment for crimes, whereof the party shall have been duly convicted.

Second.  That perfect toleration of religious sentiment shall be secured, and no inhabitant of said state shall ever be molested, in person or property, on account of his or her mode of religious worship.

Third.  That the people inhabiting said territory do agree and declare, that [they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States; and that] lands belonging to citizens of the United States, residing without the said state, shall never be taxed higher than the land belonging to the residents thereof; and that no taxes shall be imposed by said state on lands or property therein belonging to, or which may hereafter be purchased by, the United States, unless otherwise provided by the Congress of the United States.

And be it further

RESOLVED, That the Legislature of the State of Nevada hereby urges the Congress of the United States to consent to the amendment of the ordinance of the Nevada constitution to remove the disclaimer concerning the right of the Federal Government to sole and entire disposition of the unappropriated public lands in Nevada; and be it further

RESOLVED, That, upon approval and ratification of the amendment proposed by this resolution by the people of the State of Nevada, copies of this resolution be prepared and transmitted by the Secretary of the Senate to the Vice President of the United States as presiding officer of the Senate, the Speaker of the House of Representatives and each member of the Nevada Congressional Delegation; and be it further

RESOLVED, That this resolution becomes effective upon passage and approval, except that, notwithstanding any other provision of law, the proposed amendment to the ordinance of the constitution of the State of Nevada, if approved and ratified by the people of the State of Nevada, does not become effective until the Congress of the United States consents to the amendment or upon a legal determination that such consent is not necessary.

Neither Congress nor the courts have taken any action in 18 years. They’ve basically thumbed their collective noses at the voters of Nevada. If a vote of the people is ignored for 18 years, could it be argued that it has become law by default? Silence constitutes consent.

Now, as for what powers the sheriffs of various counties might have, here is what the 9th Circuit said about the police powers reversed to the state’s under the 10th Amendment:

“Gardners argue that federal ownership of the public lands in Nevada is unconstitutional under the Tenth Amendment. Such ownership, they argue, invades ‘core state powers reserved to Nevada,’ such as the police power.

“Federal ownership of the public lands within a state does not completely divest the state from the ability to exercise its own sovereignty over that land.   The state government and the federal government exercise concurrent jurisdiction over the land. In Kleppe v. New Mexico, the Supreme Court held that the Wild Free-roaming Horses and Burros Act was not an impermissible intrusion on the sovereignty of New Mexico. … In so doing, the Court noted:

“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. [citations omitted] And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.

“Indeed, a state may enforce its criminal and civil laws on federal land ‘so long as those laws do not conflict with federal law.’ … The state of Nevada, then, is not being unconstitutionally deprived of the ability to govern the land within its borders. The state may exercise its civil and criminal jurisdiction over federal lands within its borders as long as it exercises its power in a manner that does not conflict with federal law.”

What could the sheriff have done to keep the peace?

 

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9 comments on “What is the law of the land when it comes to public lands in Nevada?

  1. James Lamb says:

    It is my understanding that the Disclaimer Clause was to provide a clear title to the land when the federal government sold or gave the land to homesteaders and others. This was to prevent claims on the land after they were deeded to the people. The problem was the federal government never sold the land as it was intended. Could the legal argument be that since the federal government did not act as envisioned, in selling the land, then should it be void?

  2. nyp says:

    Amazing the kinds of contortions you all are taking to justify a wacko who, unlike law-abiding ranchers, grazes his cattle on public land and refuses to pay for it.

  3. Winston Smith says:

    Article 1, Section 8, U.S. Constitution
    ———————————————-
    “To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;”

    During the Constitution ratification process, the anti-federalists were outraged that the Constitution called for a “federal city” (district) not exceeding ten miles square to be the seat of the federal government. Yes, a mere one hundred square miles were cause for consternation:

    “Their ten miles square, with all the fine ornaments of human life, added to their powers, and taken from the States, will reduce the power of the latter to nothing.” – Patrick Henry: June 7, 1788

    “The constitution provides, that congress shall have the sole and exclusive government of what is called the federal city, a place not exceeding ten miles square, and of all places ceded for forts, dock-yards, &c. I believe this is a novel kind of provision in a federal republic; it is repugnant to the spirit of such a government, and must be founded in an apprehension of a hostile disposition between the federal head and the state governments; and it is not improbable, that the sudden retreat of congress from Philadelphia, first gave rise to it.

    Such a city, or town, containing a hundred square miles, must soon be the great, the visible, and dazzling centre, the mistress of fashions, and the fountain of politics. There may be a free or shackled press in this city, and the streams which may issue from it may over flow the country, and they will be poisonous or pure, as the fountain may be corrupt or not. But not to dwell on a subject that must give pain to the virtuous friends of freedom, I will only add, can a free and enlightened people create a common head so extensive, so prone to corruption and slavery, as this city probably will be, when they have it in their power to form one pure and chaste, frugal and republican?” – The Federal Farmer

    Thanks to the anti-federalists we have a Bill of Rights, which is actually restricts the power of the federal government. In spite of that, many of the anti-federalist warnings about the growing power in D.C. have come true. Imagine their reactions to the current federal government “owning” 982 thousand square miles of this nation, and being willing to shoot Americans for grazing cattle thereon.

    War is Peace; Freedom is Slavery; Ignorance is Strength;

  4. Winston Smith says:

    Wanda Allen ~ There have been a lot of people criticizing Clive Bundy because he did not pay his grazing fees for 20 years. The public is also probably wondering why so many other cowboys are supporting Mr. Bundy even though they paid their fees and Clive did not.

    What you people probably do not realize is that on every rancher’s grazing permit it says the following: “You are authorized to make grazing use of the lands, under the jurisdiction of the Bureau of Land Management and covered by this grazing permit, upon your acceptance of the terms and conditions of this grazing permit and payment of grazing fees when due.”

    The “mandatory” terms and conditions go on to list the allotment, the number and kind of livestock to be grazed, when the permit begins and ends, the number of active or suspended AUMs (animal units per month), etc. The terms and conditions also list specific requirements such as where salt or mineral supplements can be located, maximum allowable use of forage levels (40% of annual growth), etc., and include a lot more stringent policies that must be adhered to.

    Every rancher must sign this “contract” agreeing to abide by the TERMS AND CONDITIONS before he or she can make payment.

    In the early 90s, the BLM went on a frenzy and drastically cut almost every rancher’s permit because of this desert tortoise issue, even though all of us ranchers knew that cow and desert tortoise had co-existed for a hundred+ years. As an example, a family friend had his permit cut by 90%. For those of you who are non ranchers, that would be equated to getting your paycheck cut 90%.

    In 1976 there were approximately 52 ranching permittees in this area of Nevada. Presently, there are 3. Most of these people lost their livelihoods because of the actions of the BLM. Clive Bundy was one of these people who received extremely unfair and unreasonable TERMS AND CONDITIONS.

    Keep in mind that Mr. Bundy was required to sign this contract before he was allowed to pay. Had Clive signed on the dotted line, he would have, in essence, signed his very livelihood away. And so Mr. Bundy took a stand, not only for himself, but for all of us. He refused to be destroyed by a tyrannical federal entity and to have his American liberties and freedoms taken away.

    Also keep in mind that all ranchers financially paid dearly for the forage rights those permits allow – – not rights to the land, but rights to use the forage that grows on that land. Many of these AUMS are water based, meaning that the rancher also has a vested right (state owned, not federal) to the waters that adjoin the lands and allow the livestock to drink. These water rights were also purchased at a great price.

    If a rancher cannot show beneficial use of the water (he must have the appropriate number of livestock that drinks and uses that water), then he loses that water right. Usually water rights and forage rights go hand in hand. Contrary to what the BLM is telling you, they NEVER compensate a rancher for the AUMs they take away. Most times, they tell ranchers that their AUMS are “suspended,” but not removed.
    Unfortunately, my family has thousands of “suspended” AUMs that will probably never be returned. And so, even though these ranchers throughout the course of a hundred years invested thousands (and perhaps millions) of dollars and sacrificed along the way to obtain these rights through purchase from others, at a whim the government can take everything away with the stroke of a pen. This is the very thing that Clive Bundy singlehandedly took a stand against. Thank you, Clive, from a rancher who considers you a hero. –

    See more at:

    http://nationalreport.net/multiple-militia-members-arrested-bundy-ranch-charged-domestic-terrorism/#sthash.SXLcl5MK.dpuf

  5. […] So, what does the state Constitution really say now? […]

  6. […] government has no business controlling so much land in a sovereign state. The judge had to go by a 9th U.S. Circuit Court ruling involving another Nevada rancher who refused to pay grazing fees after being kicked off his own […]

  7. […] to a 9th U.S. Circuit Court of Appeal opinion in the case against Ruby Valley rancher Cliff Gardner, the sheriff has every right to enforce […]

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