When my father broke the two-by-four across the muzzle of a recalcitrant 2,000-pound black Angus bull, he explained: First, you have to get his attention.
Perhaps that is one way to look at Assembly Bill 408 that would prohibit the federal government owning or regulating land and water rights in state of Nevada without legislative approval.
There was a big rally and a couple of hours of testimony about the bill Tuesday in Carson City.
Looming over all the debate over the bill was an opinion from the Legislative Counsel Bureau that AB408, under current case law, is unconstitutional. And so it is.
At one time case law stated that “separate but equal” was constitutional, internment of Japanese citizens was constitutional and free speech could be curbed if it challenged military conscription law.
Perhaps it is time to get the federal government’s attention and make its lawyers defend the 150-year control of 87 percent of the land in Nevada by the federal government.
As the Counsel Bureau opinion states, the courts over the years have upheld the federal government’s hegemony over much of the West.
One of those cases out of the liberal 9th U.S. Circuit Court of Appeals in 1997 ruled against rancher Cliff Gardner of Ruby Valley, who contended the state and not the federal government should have sovereignty over the unappropriated land in Nevada. Gardner was one of those testifying in favor of AB408.
The court ruled that the Equal Footing Doctrine, under which all states admitted to the Union have equal footing with the original 13 states, does not mean what it clearly says.
“The Equal Footing Doctrine, then, applies to political rights and sovereignty, not to economic or physical characteristics of the states, the court ruled.
But in 1828 states from Illinois to Florida successfully argued:
“If these lands are to be withheld from sale, which is the effect of the present system, in vain may the People of these States expect the advantages of well settled neighborhoods, so essential to the education of youth, and to the pleasures of social intercourse, and the advantages of religious instruction. Those States will, for many generations, without some change, be retarded in endeavors to increase their comfort and wealth, by means of works of internal improvements, because they have not the power, incident to all sovereign States, of taxing the soil, to pay for the benefits conferred upon its owner by roads and canals.
“When these States stipulated not to tax the lands of the United States until they were sold, they rested upon the implied engagement of Congress to cause them to be sold, within a reasonable time. No just equivalent has been given those States for a surrender of an attribute of sovereignty so important to their welfare, and to an equal standing with the original States.”
In fact, the Nevada statehood documents include language saying the state would get: “five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …”
That is an implicit promise to sell the federal land.
The year before the Gardner case the voters of Nevada repealed the 1864 Disclaimer Clause that says the state does “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.”
Nearly 20 years later Congress and the courts have failed to act on that vote. So much for the right to redress grievances as promised by the First Amendment.
AB408 might just be the right two-by-four across the federal muzzle to get their attention.