Newspaper column: On the issue public lands, first, you have to get their attention

When my ol’ pappy broke the two-by-four across the muzzle of our stubborn 2,000-pound black Angus bull, he explained: “First, son, you have to get his attention.”

Perhaps that is one way to look at Assembly Bill 408, which would prohibit the federal government from owning or regulating land and water rights in the state of Nevada without legislative approval.

Looming over debate on the bill is an opinion from the Legislative Counsel Bureau, essentially the lawmakers’ lawyer, that AB408, under current case law, is unconstitutional. And so it is.

But case law can change. At one time case law stated that “separate but equal” was constitutional and internment of American citizens of Japanese ancestry was constitutional.

Perhaps it is time to get the federal government’s attention and make its lawyers defend its 150-year control of nearly 87 percent of the land in Nevada.

The Counsel Bureau notes the courts over the years have upheld the federal government’s hegemony over 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 Nevada land. Gardner testified in favor of AB408.

During the Bundy standoff a year ago. (R-J photo)

The 9th Circuit ruled that the Equal Footing Doctrine, under which all states admitted to the Union are to 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.

Surely, equal footing means equal economic opportunity and the equal ability to provide tax revenue, as well as political rights, when you look at the plain meaning of the words.

In 1828 seven states from Illinois to Florida successfully argued that the federal government should release its ownership of vast tracts of public land within their borders, saying: “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.”

Today those states have less than 4 percent federal public land holdings, compared to 50 percent across the West

In fact, the Nevada statehood document includes 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 that the land shall be sold.

The year before the Gardner case the voters of Nevada repealed the 1864 Disclaimer Clause that said the state does “forever disclaim all right and title to the unappropriated public lands lying within said territory …” That was just to assure a clear title, since the land shall be sold.

Nearly 20 years since that ballot initiative, Congress and the courts have failed to act. So much for a right to redress grievances, as guaranteed by the First Amendment.

There is an alternative to AB408 wending its way through the halls of the Legislature. That is Senate Joint Resolution 1. It urges Congress to enact legislation that would allow transferring title to more than 7 million acres of the 58 million acres of federal public lands to the state of Nevada in the manner outlined in a report prepared by the Nevada Land Management Task Force.

Meanwhile, U.S. Rep. Mark Amodei is not waiting for supplications from Carson City. He has introduced a bill called Honor the Nevada Enabling Act of 1864 Act, which calls on Congress to hand over 7.2 million acres to Nevada in a first phase.

The bill states: “The Federal Government promised all new States, in their statehood enabling Act contracts, that it would dispose of federally controlled public lands within the borders of those States,” but it failed to honor the promise.

The bill has been referred to the Committee on Natural Resources, where co-sponsor Rep. Cresent Hardy sits.

While this may be like tapping Congress on the shoulder and asking for the next dance, after 150 years of being a wallflower, perhaps Nevada should also wield a two-by-four.

A version of this column appears this week in 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.

Follow-up: According to the Review-Journal, that controversial Assembly Bill 408 that demanded the federal government cede control of much of the federal public land in the state has beencompletely rewritten.

“The bill as amended declares that sheriffs and their deputies are the primary law enforcement officers in the unincorporated areas of their respective counties. It would allow county sheriffs to enter into agreements with federal agencies to exercise law enforcement authority on land managed by the federal agency,” says the story posted online Thursday. All other provisions about acquiring the land were excised.

Reporter Sean Whaley said the bill passed out of committee on a party-line vote — Republicans in support and Democrats opposed.

 

 

While Carson City debates federal land grab, congressman acts

While lawmakers in Carson City wrangle over bills seeking state control of at least some of the federal public lands that constitute 87 percent of the land within Nevada’s borders, Rep. Mark Amodei is moving forward with legislation in Washington.

He already has introduced H.R.1484 — Honor the Nevada Enabling Act of 1864 Act. The bill has been referred to the House Committee on Natural Resources, where its co-sponsor, Rep. Cresent Hardy, sits. Amodei and Hardy represent the bulk of rural Nevada in their respective 2nd and 4th Congressional districts.

The bill opens with these findings:

(1) The Federal Government controls over 80 percent of all of the land within the State of Nevada, which is a greater percentage than any other State.
(2) The paucity of State land and privately controlled land in Nevada severely constrains the size and diversity of Nevada’s economy.

Mark Amodei

(3) The Federal Government promised all new States, in their statehood enabling Act contracts, that it would dispose of federally controlled public lands within the borders of those States.
(4) The Federal Government has honored this promise with 38 States.
(5) The Federal Government has failed to honor this promise with, and continues to control significant percentages of the land within, the States of Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, and Washington.

Cresent Hardy

(6) The United States Supreme Court has declared that statehood enabling Act contracts are `solemn compacts’ with enforceable rights and obligations.
(7) Nevada could generate significant net revenue for the benefit of its lands and people if it were afforded the opportunity to manage an expanded State-controlled land portfolio.
(8) A transfer of federally administered land to Nevada can be accomplished in phases.

 

The bill goes on to say the state should be authorized to select no less than 7.2 million acres of public land for conveyance to Nevada in an initial phase.

Meanwhile, lawmakers in Carson City dither over SJR1 and AB408. Amodei’s bill appears to be vehicle for carrying SJR1 forward, but probably would help if the Legislature could pass it.

Perhaps AB408 would get the federal government’s attention

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.

Michele Fiore, main sponsor of AB408 testifies Tuesday

LCB letter

How can Nevada take control of more federal land?

How will lawmakers in Carson City decide to grab federal land for the state?

There are two pieces of legislation pending in Carson City whose intention is allow the state to take control of at least some of the federal land that constitute about 87 percent of the land inside the state boundaries.

Senate Joint Resolution No. 1 the culmination of years of planning and calculating that really dates back to the Sagebrush Rebellion days.

It’s label reads: “Urging Congress to enact legislation transferring title to certain public lands to the State of Nevada in accordance with the report prepared by the Nevada Land Management Task Force.”

Michele Fiore, sponsor of AB408

That task force estimates the state could generate far more revenue from control of the public land the paltry sums doled out be Washington in the form of pay in lieu of taxes.

SJR1 calls for the state over the next decade taking control of 7.2 million acres of the 48 million acres the feds now control.

But slated for a hearing by the Assembly Committee on Natural Resources, Agriculture, and Mining Tuesday afternoon is a more brazen attempt to grab federal lands, Assembly Bill 408, whose chief sponsor is Assembly member Michele Fiore.

The label on this bill reads:

“AN ACT relating to public lands; prohibiting the Federal Government from owning or regulating certain public lands or the right to use public waters; requiring the State Land Registrar to adopt regulations that provide for the appropriation and registration of grazing, logging, mineral development or other beneficial use rights on public lands; requiring the State Land Registrar to sell permits for grazing, logging, mineral development or other beneficial uses on public lands for which such rights are not registered and appropriated; requiring the board of county commissioners of each county to impose a tax on profits from the beneficial use of public lands; and providing other matters properly relating thereto.”

Considering how the courts have traditionally given deference to the supremacy of the federal government rather that the 10th Amendment states’ rights, the bill is viewed by many as a futile gesture.

This is the case, even though the Constitution says Congress only has the power: “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, dock-Yards, and other needful Buildings …”

But a number of lawmakers, including a few of its sponsors, are also questioning some of the details in bill, fearing the language could jeopardize long held water and grazing rights.

It is that phrasing about beneficial use that concerns people. Could a failure to graze a given tract during a drought constitute giving up a grazing right, since it was not put to beneficial use? What about competing uses for the same tract of land?

The bill’s language includes: “Provide for the appropriation of grazing, logging, mineral development or other beneficial use rights on public lands: (a) To the first person who used the land for which the rights are claimed and who continues to use the land for that purpose; or (b) If the land for which the rights are claimed has not been used in the manner for which the rights are claimed, to the first person who claims the rights. 2. Establish procedures by which claims to such rights may be registered with the State Land Registrar. Each right must be identified by priority date, the manner in which the land is being used, the geographic boundaries of the land being used and the person who claims the right.”

The devil may be in the details.