Newspaper column: Democrats defeat effort to limit presidential power over public lands (Updated)

Inside Basin and Range National Monument. (R-J photo)

Another effort in Washington this past week to rein in the executive branch’s power to grab Western land and take it out of productive use was strangled in its crib by Democratic senators.

Utah Sen. Mike Lee tried to amend a Senate energy bill by adding a provision limiting a president’s power under the Antiquities Act of 1906 to create new national monuments without the consent of Congress and the state in which the monument is located. His amendment failed on a near-party-line vote.

Nevada Sen. Dean Heller, who voted for the Lee amendment, said, “As we approach the end of the Obama administration, it is even more important we reign in the executive branch’s authority to unilaterally lock up our public lands, so I am disappointed this amendment failed. Often large monument designations that do not have public support get pushed through as presidents leave the White House. Heavy-handed executive action is not the best way to preserve some of the West’s most treasured places.”

The Salt Lake Tribune quoted Sen. Lee as saying, “The president of the United States has no business seizing vast stretches of public land to be micromanaged — and mismanaged — by federal agencies, especially if the people who live, work and depend on the land stand in opposition to such a takeover.”

This past summer the president — at the behest of Sen. Harry Reid — signed a proclamation creating a 700,000-acre Basin and Range National Monument in Coal and Garden valleys in Lincoln and Nye counties, even though most of the state’s congressional delegation and local elected officials opposed it.

A year ago Reid took to the senate floor and chastised those who sought to give states a greater say over Antiquities Act land grabs, noting that in 1922 President Warren Harding used the Antiquities Act to protect the Lehman Caves.

“Some members of Congress – frankly, a minority – believe we should repeal or gut this law,” Reid said. “They advocate weakening a presidential authority that protected the Grand Canyon and even the Statue of Liberty. … I will absolutely do everything I can to protect the Antiquities Act that has been in existence since 1906 and has been utilized by 16 presidents.”

In a telephone conference call with constituents recently, 4th Congressional District Rep. Cresent Hardy, whose district covers northern Clark County and the southern half of rural Nevada, said of the efforts in the Senate, “Well, I think I’ve been pretty vocal on the Antiquities Act. The Antiquities Act was set into place to protect the minimal footprint of that which you are trying to protect.”

He noted that one of the reasons Reid pushed for designating the Basin and Range National Monument was to provide a buffer for a mammoth earthen “art” project called “City” near Hiko and petroglyphs in the area. He estimated those could be protected with less than 150 acres.

“But the president and Senator Reid determined that they wanted to surround the area and to protect 704,000 acres,” Hardy said. “I think that is an injustice to people. I think that is an injustice to the country. It receives economic benefit from those who are ranching out there, possible mineral exploration or other economic opportunity.”

He described the area as no different than any other tract of land in the whole state of Nevada.

Hardy added that he did manage to get approval to allow continued use of the monument area for Air Force training, which has a $5.2 billion impact on the state’s economy.

“The Antiquities Act I think is dilapidated, it’s worn out, it needs to be revisited and have more controls, instead of every president trying to create themselves a legacy,” the congressman said.

Some have argued that the Antiquities Act was an unconstitutional abrogation of Congress’ duties. Article IV, Section 3 of the U.S. Constitution reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States …”

A Heritage Foundation essay argues, “The delegated powers are defined as placed in distinct branches of government for the ‘accumulation of all powers, legislative, executive, and judiciary, in the same hands,’ writes James Madison in Federalist No. 47, ‘may justly be pronounced the very definition of tyranny.’ While the executive must exercise some discretion in the application of law, lawmaking remains the prerogative of Congress.”

The Supreme Court has upheld the act three times, but on arguments other than constitutionality.

A version of this column appears this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.


LA Times graphic

On Thursday, President Obama designated the Mojave Trails, Sand to Snow and Castle Mountains monuments under the 1906 Antiquities Act.

The lede on the LA Times account reads: “President Obama designated three new national monuments in the California desert Thursday, expanding federal protection to 1.8 million acres of landscapes that have retained their natural beauty despite decades of heavy mining, cattle ranching and off-roading.”

So, what do they need to be protected from if they’ve retained their natural beauty after all that?

The LA paper quoted one self-styled environmentalist as saying: “A few centuries ago, Mexican wolves chased pronghorn antelope across this very landscape. … We’re already in discussions with federal wildlife authorities, about taking the next step: reintroducing species of a bygone era, starting with pronghorn antelope.”

An earlier story in the Las Vegas newspaper quoted a spokesman for the California Fish and Wildlife Department as saying there is “no evidence pronghorn ever occupied the Castle Mountains area” and there is no interest in trying to introduce them.


28 comments on “Newspaper column: Democrats defeat effort to limit presidential power over public lands (Updated)

  1. nyp says:

    Today’s Second Amendment Moment: two shot dead at Arizona high school.

  2. Barbara says:

    Hopefully, everyone is looking at the Presidential candidates to see where they stand on this subject. Trump believes the government should retain control of the land. Cruz would return control to the States. I have not heard the other candidates’ position.

  3. nyp says:

    looks like the dead kids were both sophmores.

  4. Give it a rest little nyper…nobody really cares a rat’s derriere about your pipsqueak anti-2nd Amendment bravo sierra…

  5. What Me Worry says:

    Trump made a valid point about land being sold off for devolpment when states get intto finacial trouble. Remember the state and fed BLM sales of the 90s? Then there’s those pesky state constitutional provisions that made private lands federal property for admission to the Union.

    The state and fed have proven their inability to take care of these lands, so should there be a new tax dollar entity formed? How should use oversight be designed? Once these items are resolved, then the conversation about BLM lands may be productive.

  6. Nevada voters repealed the Disclaimer Clause in 1996.

  7. Patrick says:

    Th(e) disclaimer clause couldn’t be revoked “without the consent of the United States and the people of said state,” according to the (enabling) legislation.

    Nevada being just one party to the original agreement, just because they not want to back out of the agreement has about as much to do with anything, as my wanting to back out of my credit card debt after I’ve spent all the money.

  8. 150 years later? We are still bound by the residents of a territory that lacked enough population to qualify as a state?

  9. nyp says:

    I feel the same way about being bound by the 1789 decisions of a bunch of guys who were unrepresentative of the then US population

  10. Barbara says:

    Thanks for the reminder. I did see the editorial. The most productive use of the land would be recognized if it was held privately. I see no reason why either the Feds or the State should retain ownership long term of large swarths of land.

  11. Patrick says:

    Well Thomas if a Nevada wants to change the contract, then all they need to do is get an amendment to the document.

    But a unilateral action has no affect.

  12. No redress of grievance. The vote has been ignored for 20 years. Unilateral action up against inaction.

  13. Patrick says:

    Thomas be serious. I can’t disclaim a contract I signed with any impact on the contract, why should Nevada be able to do it?

  14. In 1828 the states of Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama and Florida petitioned Congress to turn over public lands to them by making an argument that became known as the Equal Footing Doctrine. They were successful.

    “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.”

  15. Patrick says:

    “The equal footing doctrine is based on Article IV, § 3, Clause 1 of the Constitution. That clause 7
    addresses how new states will be admitted. The doctrine means that “equality of constitutional 8
    right and power is the condition of all States of the Union, old and new.” It does not mean that physical or economic situations among states must be the same. The term comes from state

    4 Kleppe v. New Mexico, 426 U.S. 529, 542-543 (1976).
    5 CRS, “Article IV, Section 3, Clause 2 Analysis,” United States Constitution: Analysis and Interpretation, footnotes
    omitted, at
    6 See United States v. Gratiot, 39 U.S. (14 Pet.) 526 (1840); Camfield v. United States, 167 U.S. 518 (1897); Kleppe v.
    New Mexico, 426 U.S. 529 (1976); and Nevada v. United States, 512 F. Supp. 166 (D. Nev. 1981), aff’d on other th
    grounds, 699 F. 2d 486 (9 Cir. 1983).

    The clause reads: “New States may be admitted by the Congress into this Union; but no new State shall be formed or
    erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or
    Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

    8 Escanaba v. City of Chicago, 107 U.S. 678, 689 (1883).
    9 United States v. Texas, 339 U.S. 707, 716 (1950), reh’g denied, 340 U.S. 907 (1950).

    enabling acts that included the phrase that the state was admitted “into the Union on an equa Footing with the original States.” The U.S. Supreme Court has clarified what those rights are.
    In the context of land, the equal footing doctrine has been held to mean that states have the
    authority over the beds of navigable waterways. Some have argued that the equal footing doctrine
    prohibits permanent federal land ownership.

    This is contrary to the plain wording of the Constitution. The doctrine and some language within the U.S. Supreme Court case of Pollard’s 11
    Lessee v. Hagan have been combined to provide an argument that the federal government held
    the lands ceded by the original states only temporarily pending their disposal.

    However, this theory has been rejected by other Supreme Court cases. Furthermore, in Pollard’s Lessee v.
    Hagan, the Supreme Court ruled on the narrow issue of federal ownership of submerged lands
    beneath navigable waterways, finding those lands belonged to the state under the equal footing
    doctrine because the original states had kept ownership of the shores of navigable waters and the 12
    soils under them. ”

  16. Still morally and economically wrong.

  17. Steve says:

    What Patrick, in his amoral way, shows here are the legal maneuvers used to take the lands away from western states.
    Prior to these wranglings, lands were meant to be under full control of the individual state, with necessary lands actually rented to the federal government.

    It is as Franklin warned. We have probably already lost most of the government formed by the founders.

    Bernie will finish the job!

  18. Patrick says:

    Stevetard seems to think that when someone obtains legal title to property, that they are obligated to do give that property away even when they don’t want to and were never legally obligated to;

    “What…did we lose a war or something?”

  19. Patrick says:

    Thomas why is it morally wrong?

  20. … to deny a state’s it sovereignty.

  21. It also was a contract entered under duress.

  22. Steve says:

    The feds do not have “legal title” to property.

    They, in fact, do pay something to the state to keep the right to use the lands….or hadn’t you heard of PILT….Patty??

  23. Patrick says:

    An interesting, and relevant side bar to Scalia’s passing.

    The owner of the ranch where Scalia died, purchased the land from the state (which had been designated as a state park previously) for peanuts.

    “But at the end of August, Poindexter found himself in an uncomfortable place: the headlines. He’d been in quiet negotiations throughout the summer with the Texas Parks and Wildlife Department to purchase 46,000 acres of Big Bend Ranch State Park for around $2 million. But the day before the TPWD commissioners were to receive their staff’s recommendation for approval—in a closed executive session that would be followed the next day by the deal’s only public hearing—the Austin American-Statesman announced in a front-page story that the state was considering selling off “one-sixth of its flagship park.” (The figure was off, but negligibly so.) The opposition from conservationists was Bork-like in its intensity and organization. In an editorial the day of the hearing, the Statesman decried the deal’s secrecy and “fire sale price.” That afternoon, Poindexter was vilified in public testimony for being a poor neighbor and an insensitive steward of the land he already owns and for wanting to close the park to all but the rich guests who stay at his resort. The commissioners rejected the deal. In the end, Poindexter felt as bushwhacked by the outcry as park lovers had been by the suddenness of the hearing. Pinched for time, he was unable to convince his detractors that the deal was as good for the state as it was for him”

    . – See more at:

    Moral indeed.

  24. Another reason for an Article 5 Convention of States…to limit the scope of ownership and control of lands by the federal government that should be deemed back to each individual state.

  25. Patrick says:

    You missed the point HFB. The state had control of the land and, through polical machinations that deprived the entire state citizenry of the enjoyment of the land, a private individual took control of it, denying access to all but his wealthy friends, and the people who owned the property got, not the mine, but the shaft.

    And you can expect that would be the inevitable result of any land transferred from the federal government to any state.

  26. I’m well aware of your point…I just totally disagree with it!

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