Newspaper column: Bundy lawsuit addresses public land ownership

A civil lawsuit filed on behalf of Bunkerville rancher Cliven Bundy in state district court asks the court to declare that the public land on which Bundy grazes his cattle is owned by Nevada and Clark County, not the federal government.

The chances of success are most likely slim and none, but the suit raises some salient points about the power of the federal bureaucracy to hold sway over more than 85 percent of the land in Nevada.

Bundy and his sons are notorious for the 2014 armed standoff with Bureau of Land Management agents who attempted to confiscate his cattle for his failure to pay $1 million in grazing fees and fines over two decades. Federal criminal charges against the remaining defendants in that case were dismissed when the judge ruled the prosecution failed to turn over potentially exculpatory evidence to the defendants.

Cliven Bundy (R-J pix)

The civil lawsuit — drafted by Larry Klayman, often described as an activist right-wing lawyer and founder of Judicial Watch, and Craig Mueller, who earlier this year lost a primary bid for attorney general — cites court cases, U.S. and Nevada constitutional history, the Treaty of Guadalupe Hidalgo in which Mexico ceded much of the West to the United States and legislative proclamations.

The suit notes the state Legislature has never consented to allow the U.S. government to own more than 85 percent of the land within the state’s borders.

When the Constitution was being drafted James Madison raised concerns about giving Congress too much power to purchase land in the states, 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.”

Constitutional Convention delegate Rufus King moved to add the phrase “by consent of the legislature of the state” to the section that mentioned the federal government owning forts, docks and “other needful Buildings.” It passed unanimously. With the exception of the Nevada Test Site, few of the federal land holdings in Nevada have been with the consent of the Legislature.

Bundy’s suit further explains the intent of a section of the Nevada Constitution known as the Disclaimer Clause that said 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.”

Klayman and Mueller write, “The intent of the Territorial Legislature was not to ceed (sic) the land to the US Government ‘forever’, but to clear title of all unappropriated lands within the Territory so U.S. Congress could dispose of the lands to the State of Nevada.”

Which is probably why the admission document promised 5 percent of the proceeds to Nevada when land would be “sold by the United States subsequent to the admission of said state into the Union …”

In fact, though the suit doesn’t mention it, that so-called Disclaimer Clause was repealed by the voters in 1996, “effective on the date Congress consents to amendment or a legal determination is made that such consent is not necessary …” Might the court make such a legal determination? Doubtful.

The lawsuit also mentions a section of Nevada Revised Statutes 321 that declared, “The State of Nevada has a legal claim to the public land retained by the Federal Government within Nevada’s borders because: … 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. … The purported right of ownership and control of the public lands within the State of Nevada by the United States is without foundation and violates the clear intent of the Constitution of the United States.”

Not only has the Legislature not consented, it has vehemently protested.

The lawsuit points out on four occasions that the Bundy ranch has been in existence for 141 years, during which it has held water, grazing and property rights, adding that Bundy “has suffered substantial injury, as his cattle are his only source of income … (and) is entitled to declaratory judgment that the lands upon which he and his family have conducted its ranching, The Bundy Ranch, for generations is property belonging to the People of Nevada and its subdivision, Clark County …”

The suit raises some serious questions.

A version of this column appeared 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 and the Lincoln County Record — and the Elko Daily Free Press.