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.

What is the law of the land when it comes to public lands in Nevada?

Cliven Bundy. (Getty Images)

Now that the federal standoff with Cliven Bundy over his grazing cattle on public lands without paying grazing fees is at a hiatus, perhaps it is time to once again look at a couple of aspects of the legal arguments.

Bundy claims the federal government is wrongly claiming land that should be controlled by the state of Nevada and/or Clark County.

He lost that argument in federal court when Judge Lloyd George ruled against all his arguments by citing findings in a similar case out of Elko County by the 9th U.S. Circuit Court of Appeals. The court ruled against rancher Clifford Gardner who had been running cattle on Forest Service land without paying a grazing fee. He was told to keep cattle off the land for a certain period after a wildfire.

Here is a footnote from that case:

“Gardners point out that Nevada recently passed a statute claiming ownership over all public lands within its boundaries, Nev.Rev.Stat. 321.5973. Gardners claim that the passage of this law further demonstrates that title to the public lands in Nevada properly rests in the state, not the federal, government. Gardners fail to note, however, that the Nevada statute by its own terms excludes national forest lands from the public lands claimed by Nevada.   See Nev.Rev.Stat. § 321.5963.”

Yes, the statute excluded “congressionally authorized national parks, monuments, national forests or wildlife refuges.”

But Bundy is grazing his cattle on BLM land. Whether that would have made a difference to the 9th Circuit is unknown.

In 1996, more than 56 percent of Nevada voters agree to remove from the state Constitution the so-called Disclaimer Clause under which the residents of the territory agreed to essentially deed all unappropriated land inside the future state to the federal government, though it said that land “shall be sold,” with 5 percent of proceeds going to the state.

Here is what was voted on in 1996. Note the portion with the strike-through:

SENATE JOINT RESOLUTION – Proposing to amend the ordinance of the Nevada constitution to repeal the disclaimer of interest of the state in unappropriated public lands.

WHEREAS, The State of Nevada has a strong moral claim upon the public land retained by the Federal Government within Nevada’s borders; and

WHEREAS, On October 31, 1864, the Territory of Nevada was admitted to statehood on the condition that it forever disclaim all right and title to unappropriated public land within its boundaries; and

WHEREAS, Nevada received the least amount of land, 2,572,478 acres, and the smallest percentage of its total area, 3.9 percent, of the land grant states in the Far West admitted after 1864, while states of comparable location and soil, including Arizona, New Mexico and Utah, received approximately 11 percent of their total area in federal land grants; and

WHEREAS, The State of Texas, when admitted to the Union in 1845, retained ownership of all unappropriated land within its borders; and

WHEREAS, The federal holdings in the State of Nevada constitute 86.7 percent of the area of the state, and in Esmeralda, Lincoln, Mineral, Nye and White Pine counties the Federal Government controls from 97 to 99 percent of the land; and

WHEREAS, The federal jurisdiction over the public domain is shared among several federal agencies or departments which causes problems concerning the proper management of the land and disrupts the normal relationship between a state, its residents and its property; and

WHEREAS, 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; and

WHEREAS, The exercise of dominion and control of the public lands within the State of Nevada by the United States works a severe, continuous and debilitating hardship upon the people of the State of Nevada; now, therefore, be it

RESOLVED BY THE SENATE AND ASSEMBLY OF THE STATE OF NEVADA, JOINTLY, That the ordinance of the constitution of the State of Nevada be amended to read as follows:

In obedience to the requirements of an act of the Congress of the United States, approved March twenty-first, A.D. eighteen hundred and sixty-four, to enable the people of Nevada to form a constitution and state government, this convention, elected and convened in obedience to said enabling act, do ordain as follows, and this ordinance shall be irrevocable, without the consent of the United States and the people of the State of Nevada:

First.  That there shall be in this state neither slavery nor involuntary servitude, otherwise than in the punishment for crimes, whereof the party shall have been duly convicted.

Second.  That perfect toleration of religious sentiment shall be secured, and no inhabitant of said state shall ever be molested, in person or property, on account of his or her mode of religious worship.

Third.  That the people inhabiting said territory do agree and declare, that [they 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; and that] lands belonging to citizens of the United States, residing without the said state, shall never be taxed higher than the land belonging to the residents thereof; and that no taxes shall be imposed by said state on lands or property therein belonging to, or which may hereafter be purchased by, the United States, unless otherwise provided by the Congress of the United States.

And be it further

RESOLVED, That the Legislature of the State of Nevada hereby urges the Congress of the United States to consent to the amendment of the ordinance of the Nevada constitution to remove the disclaimer concerning the right of the Federal Government to sole and entire disposition of the unappropriated public lands in Nevada; and be it further

RESOLVED, That, upon approval and ratification of the amendment proposed by this resolution by the people of the State of Nevada, copies of this resolution be prepared and transmitted by the Secretary of the Senate to the Vice President of the United States as presiding officer of the Senate, the Speaker of the House of Representatives and each member of the Nevada Congressional Delegation; and be it further

RESOLVED, That this resolution becomes effective upon passage and approval, except that, notwithstanding any other provision of law, the proposed amendment to the ordinance of the constitution of the State of Nevada, if approved and ratified by the people of the State of Nevada, does not become effective until the Congress of the United States consents to the amendment or upon a legal determination that such consent is not necessary.

Neither Congress nor the courts have taken any action in 18 years. They’ve basically thumbed their collective noses at the voters of Nevada. If a vote of the people is ignored for 18 years, could it be argued that it has become law by default? Silence constitutes consent.

Now, as for what powers the sheriffs of various counties might have, here is what the 9th Circuit said about the police powers reversed to the state’s under the 10th Amendment:

“Gardners argue that federal ownership of the public lands in Nevada is unconstitutional under the Tenth Amendment. Such ownership, they argue, invades ‘core state powers reserved to Nevada,’ such as the police power.

“Federal ownership of the public lands within a state does not completely divest the state from the ability to exercise its own sovereignty over that land.   The state government and the federal government exercise concurrent jurisdiction over the land. In Kleppe v. New Mexico, the Supreme Court held that the Wild Free-roaming Horses and Burros Act was not an impermissible intrusion on the sovereignty of New Mexico. … In so doing, the Court noted:

“Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. [citations omitted] And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.

“Indeed, a state may enforce its criminal and civil laws on federal land ‘so long as those laws do not conflict with federal law.’ … The state of Nevada, then, is not being unconstitutionally deprived of the ability to govern the land within its borders. The state may exercise its civil and criminal jurisdiction over federal lands within its borders as long as it exercises its power in a manner that does not conflict with federal law.”

What could the sheriff have done to keep the peace?