Newspaper column: Is Nevada being unconstitutionally awed into obedience to the feds?

Over the years the battle to grant states greater control over the vast swath of federal public land have ebbed and flowed. There have been court battles, mostly lost. There have been legislative resolutions and bills, mostly ignored, as well as numerous congressional hearings and testimony.

More recently there have been instances of civil disobedience at the Bundy Ranch in Bunkerville and the Malheur National Wildlife Refuge in Oregon that have resulted in dozens of federal indictments for conspiracy and assault.

All for naught. To this day the federal agencies control 50 percent of the land in the West and 85 percent of Nevada.

But Ruby Valley cattle rancher Clifford Gardner may have unearthed an overlooked aspect of the U.S. Constitution that speaks to the core issue.

Clifford Gardner (Elko Daily Free Press photo)

Gardner is intimately familiar with the legal and moral arguments, having waged his own losing court battle over federal land grazing rights, or the lack thereof.

In 1992, a fire burned two of Gardner’s allotments. The Forest Service told him to not graze in 1993 and 1994, but Gardner turned out cattle in the spring of 1994.

The legal battle ended with a ruling from the U.S. 9th Circuit Court of Appeals in 1997, saying, “Gardners contend that, while the United States may have received the land in question from Mexico in the Treaty of Guadalupe Hidalgo in 1848, the United States was entitled only to hold the land in trust for the creation of future states, and was not authorized to retain the land for its own purposes. After Nevada became a state, Gardners argue, all of the public lands within the state boundaries reverted to the state of Nevada.”

The liberal court dismissed that claim out of hand, saying “all nongranted lands previously held by the Government of Mexico passed into the federal public domain.”

It also dismissed his argument that all states are supposed to be admitted to the Union on an equal footing with the original states. The judges said the Equal Footing Doctrine only applies to political standing and sovereignty, not economic equality.

The court held that the Property Clause gives Congress the power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

Another section of the Constitution states that Congress has exclusive 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, dock-Yards, and other needful Buildings …”

“What I’ve learned is that when they wrote that clause into the Constitution that during discussion they said very clearly that their greatest fear was that should the federal government ever own vast amounts of land in a state it would awe the state into obedience,” Gardner said in a recent interview. “That argument, original intent, I would call it, has never been presented either back in Sagebrush Rebellion I or Sagebrush Rebellion II. So I feel that is quite important.”

Gardner spells out his arguments in a 46-page white paper that he hands out when speaking to groups on this land issue.

As the nation expanded and acquired more unappropriated lands, Gardner explains, it was the practice that the government would dispose of the land, but as time went on this became less the case.

“Over the years, as I come back and look at this, I come to realize we had a lot more good arguments against the federal government’s continued control of these lands,” Gardner says, noting that one of them is how federal agencies can claim so much of the land in Nevada and not afford people their constitutional rights?

Gardner relates that James Madison wrote in 1787 that Elbridge Gerry raised concerns about giving Congress exclusive power over purchased lands, saying “that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government.”

Delegate Rufus King moved to add the phrase “by consent of the legislatureof the state.” It passed unanimously.

So, if the drafters of the Constitution deemed it necessary to prevent Congress exerting undue influence by purchasing land, is it any less undue influence by retaining 85 percent of the land in a given state?

With the exception of the Nevada Test Site, few of the federal land acquisitions have been with the consent of the Legislature.

A version of this column appeared a year ago in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

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16 comments on “Newspaper column: Is Nevada being unconstitutionally awed into obedience to the feds?

  1. nyp says:

    ” … instances of civil disobedience at the Bundy Ranch in Bunkerville and the Malheur National Wildlife Refuge in Oregon.”

    So that’s what you call it.

  2. Bill says:

    Cliff has raised an intriguing argument. Those long winter nights in Ruby Valley give one an opportunity for thought and study. This issue of the federal land control over Nevada has grown over the years as competing demands for these “public” lands has grown. . I can recall in 1972 that most ranchers in Elko County considered the BLM to be their friend for many took issue with me for a speech I gave at a Cattleman’s Association meeting cautioning about the dangers that might lie ahead when the protector became an oppressor to their interests. In 1972, the BLM helped ranchers with fencing, range, range improvement and even the acquisition and protection of water rights. Today, in the view of many, they have become not the protector but the oppressor. Keep up the good work Cliff.

  3. Steve says:

    What would nyp call it?

  4. Nyp says:

    Armed resistance

  5. Steve says:

    So like Kent State, then.

  6. Rincon says:

    I don’t recall the Kent State protesters being armed.

  7. Steve says:

    Yeah, you missed the message.

  8. Rincon says:

    I sometimes do when the message is obtuse.

  9. Steve says:

    Written as though you know how to do that.

  10. Rincon says:

    Sorry Steve. Perhaps I’m just too dumb to appreciate your wit.

  11. Steve says:

    From the beginning at Bunkerville, the armed people were the BLM.

    THAT makes it like Kent State, but this time people were ready; possibly they learned from Kent State (and other examples, Waco; Ruby Ridge), what happens when you allow your government masters to roll all over you.

    They have since faltered by leaving their private property, but David Koresh left his private property regularly and the FBI never took advantage of that. So, maybe both sides have learned something.

  12. Rincon says:

    Thanks for explaining. I was thrown off because unlike Kent State, the protestors were armed.

  13. Steve says:

    The protesters in Bunkerville didn’t even show up until the BLM fired their TAZER at one of the Bundy kids wives.
    The only shot fired in the whole incident was BLM.

    Had the protesters at Kent State been forewarned, that whole thing would have had a very different outcome.

  14. Bill says:

    When this incident first occurred there was a combination of wrong doing on both sides. Bundy had no right to graze his cattle upon public lands without paying the grazing fees that others similarly situated paid. On the other hand, the Federal Government’s response was totally disproportional. They had civil remedies against Bundy foir the money owed that they did not pursue. Bundy is no American hero but the response of the BLM was totally out of proportion and did nothing but escalate a conflict into a cause.

  15. Steve says:

    Bill,

    Precisely.

  16. […] there is also the question of whether the Founders intended that the federal government control vast swaths of land in the sovereign […]

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