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.

We are still waiting for the voice of Nevada voters to be heard — 22 years and counting

Facebook has this algorithm that pops up something you’ve shared online in the past and asks if you’d like to repost it. It might a cute pix of your dog or a vacation remembrance.

This time it turned out to be a reminder that the will of the voters of Nevada had been ignored for 16 years. It was a link to a blog based on a column that appeared in the Battle Born Media newspapers. Oh yes, it was first posted in February 2012, six years ago, so now the will of the Nevada voters has been ignored for 22 years.

Here is the column appeared in the newspapers but has long since disappeared into the ether:

By Thomas Mitchell

This is not federalism. It is feudalism.

As most Nevadans know, the federal government holds sway over somewhere between 83 and 92 percent of the land in this state, depending on which official government source you cite. That is the highest percentage of any state in the union, including Alaska.

This is the result of something known as a Disclaimer Clause included in the statehood act admitting Nevada as a state. As a condition of entry into the union, the state was required to “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.”

The federal government, not the state, controls the land known as Mount Wilson. (Pix by Jo Mitchell)

Putting aside the extortionate nature of the demand and that it was agreed to under duress and that it encumbered generations not yet born, nowhere in the Constitution is the federal government granted an enumerated power to deny any state sovereignty over its own lands. Even sharecroppers have more rights than that.

Over the years it has been unsuccessfully argued that the Disclaimer Clause violates the spirit and letter of the Equal Footing Doctrine under which every new state admitted to the union does so under the same conditions as the 13 original states.

On Oct. 31, 1864, the president proclaimed:

“Now, therefore, be it known, that I, Abraham Lincoln, President of the United States, in accordance with the duty imposed upon me by the act of congress aforesaid, do hereby declare and proclaim that the said State of Nevada is admitted into the Union on an equal footing with the original states.”

In fact, in 1911 the U.S. Supreme Court in Coyle v. Smith opined, “No prior decision of this court sanctions the claim that Congress, in admitting a new State, can impose conditions in the enabling act, the acceptance whereof will deprive the State when admitted of any attribute of power essential to its equality with the other States.”

That seems clear enough, but it has been roundly ignored.

Grazing rights are routinely canceled for arbitrary reasons. Roads are closed in order to protect some minnow or bug no matter how much it inconveniences the residents. Permission to obtain rights of way and mining permits languish for decades in the federal bureaucracy. All should be responsibilities of the state of Nevada.

It is estimated that 13 Western states forgo $4.2 billion a year in property taxes due to the vast holdings of untaxed land by the federal government.

In 1993 Nye County Commissioner Dick Carver wrote a lengthy letter to the governor and the various heads of the federal agencies controlling public land in the state. He convincingly argued:

“The people of the Nevada Territory had no authority to pass this act. Research has shown that first, the people of the Territory of Nevada had to give up all their ‘interest’ in the unappropriated lands of the Nevada territory to the Congress of the United States so Congress could pass said lands to the State of Nevada upon acceptance of Nevada into the Union. Then Nevada would become a free sovereign state as the original thirteen states relating to land.”

What many have forgotten is that in 1996 the citizens of Nevada voted to change the Nevada Constitution and strike the Disclaimer Clause. It passed with more than 56 percent of the votes.

Ballot Question 4 read simply: “Shall the Territorial Ordinance of the Nevada Constitution be amended to remove the disclaimer of the state’s interest in the unappropriated public land?” Yes or no.

Nearly 16 long years later, the state Constitution still contains a footnote explaining that the amendment was “proposed and passed by the 1993 legislature; agreed to and passed by the 1995 legislature; and approved and ratified by the people at the 1996 general election, effective on the date Congress consents to amendment or a legal determination is made that such consent is not necessary.”

Congress has not consented. There has been no legal determination.

Speaking of feudalism, the right to petition for redress of grievances was first embodied in the Magna Carta in 1215.

The Founders thought this so fundamental they included it in the First Amendment as one of five key rights delineated there.

For the voters of Nevada, this right has not been denied, just simply ignored.

In the subsequent blog I noted that I had emailed the office of Gov. Brian Sandoval and asked what he would do, if anything, to address the vote of the citizens of Nevada taken nearly 16 years earlier, but roundly ignored ever since.

I wrote, “I’ve had no reply yet. Just like the voters. I wonder if I will still be waiting 16 years hence.”

Well, it has been six years, only 10 more to go.

YouTube video posted with the blog six years ago:

 

 

Editorial: Bill would give more land control to the states

Ely resident Jay Crazier took this photo of a fire south of Wendover in 2014. (High Desert Advocate)

When Nevada was admitted into the Union in 1864 its Constitution contained a Disclaimer Clause, saying 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.”

It was intended to give the federal government a clear and unambiguous deed to the land so it could be sold, but to this day the federal government still controls 85 percent of the land inside Nevada’s boundaries and almost 50 percent of the land in the West.

In 1996 the voters of Nevada repealed the Disclaimer Clause, but nearly 20 years later little has been done to give the state greater say over that land.

A year ago, Rep. Mark Amodei, whose district includes the northern rural portion of Nevada, introduced a bill called Honor the Nevada Enabling Act of 1864 Act, which called on Congress to hand over 7.2 million acres to Nevada in a first phase. It failed.

But various efforts to at least nibble around the edges of land control are continuing.

Just this past week the House Natural Resources Committee’s Subcommittee on Federal Lands heard testimony on a bill from Idaho Rep. Raul Labrador called the Self-Sufficient Community Lands Act (H.R. 2316). Amodei is a co-sponsor of the bill and, though not yet a co-sponsor, Rep. Cresent Hardy, whose district covers the southern half of rural Nevada, is supporting the measure.

The bill would set up 200,000-acre demonstration areas on Forest Service land in any state in which the governor asks for it. State and local officials would then be responsible for managing the land, including allowing timber harvesting and using the revenue to support local needs under the Secure Rural Schools and Community Self-Determination Act of 2000.

In testimony about the bill, Rep. Don Young of Alaska said he was upset with the Forest Service because it has stopped cutting timber and become little more than park rangers, resulting in massive forest fires. “The government does not manage the land properly, and that’s a fact,” he said, adding, “Now they’re asking for money to fight fires when we should be managing the timber.”

Rep. Greg Walden of Oregon testified that three of the largest forest fires in the nation occurred a the same time in his district this past year.

“We are seeing massive maintenance back logs at all of our federal land management agencies. This mismanagement has led to a decline in forest health that results in larger and more catastrophic wildfires negatively impacting Western communities,” Rep. Hardy said recently about federal land control. “When the federal government struggles to effectively manage its resources, it’s time to consider new and balanced approaches that involve local stakeholders and give states with responsible management laws an opportunity to prove that the best stewards of the land are usually those who live closest to it.”

A memo providing background about the rationale for the bill noted the Forest Service alone manages 193 million acres — about 8 percent of the United States. Over the past decade there has been an average of more than 73,000 fires burning an average of nearly 7 million acres per year. The biggest fires start on federal land and often spread to private lands.

The subcommittee was also told that declining timber harvests are devastating rural communities. Timber harvests have declined 80 percent over the past 30 years to the point the current harvest removes only 10 percent of annual growth. Since 1990, more than 400 timber mills have closed and more than 35,000 workers have lost their jobs nationwide.

This bill would take a small bite out of a huge problem. We encourage Amodei, Hardy and the rest of our Washington delegation to pursue this and other bills that can provide economic benefit and jobs, as well as reducing wildfires.

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

To Attorney General-elect Laxalt: About that Disclaimer Clause in the state Constitution

Attorney General-elect Adam Laxalt talks about his priorities (R-J photo)

 

In one ear and out the other.

Well, I can’t really blame him, with all the people who were shaking his hand and whispering in his ear.

I bumped into Adam Laxalt on the campaign trail a couple of times and listened to his spiel. He would often mention the problem Nevada has with the federal government controlling 85 percent of the land in the state — land that could be put to economic benefit. And, as he did with a Las Vegas newspaper reporter, he would note that federal ownership is established in Nevada’s Constitutioin.

What he is referring to is the Disclaimer Clause, which was put in the constitutions of a number of states to establish free and clear title to unappropriated land.

That clause 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.”

Not only is the intent of that clause in question — Otherwise why does it also say, “That 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 …” — but the voters of Nevada amended the Constitution in 1996 and removed the Disclaimer Clause entirely.

I told Laxalt that when I got a chance to bend his ear. He said he was unaware of that — most everybody is — but would look into it. Apparently he has forgotten.

The Constitution for the past 18 years has contained a footnote:

[Amended in 1956 and 1996. The first amendment was proposed and passed by the 1953 legislature; agreed to and passed by the 1955 legislature; approved and ratified by the people at the 1956 general election. See: Statutes of Nevada 1953, p. 718; Statutes of Nevada 1955, p. 926. The second amendment was proposed and passed by the 1993 legislature; agreed to and passed by the 1995 legislature; and approved and ratified by the people at the 1996 general election, effective on the date Congress consents to amendment or a legal determination is made that such consent is not necessary. See: Statutes of Nevada 1993, p. 3136; Statutes of Nevada 1995, p. 2917.]

This was the amendment:

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 …

There has been no consent by Congress nor legal determination made. I can find no evidence any member of the Nevada congressional delegation or any state attorney general has ever pressed the matter. And you thought elections had consequences and a right to redress grievances.

How soon they forget.

 

 

 

 

 

Newspaper column: 150 years of Nevada being 15 percent of a state

On Oct. 31, 1864 — 150 years ago today — President Lincoln declared, “Now, therefore, be it known, that I, Abraham Lincoln, President of the United States, in accordance with the duty imposed upon me by the act of congress aforesaid, do hereby declare and proclaim that the said State of Nevada is admitted into the Union on an equal footing with the original states,” and Nevada became the 36th of these United States.

Equal footing? Nevada did not get so much as a toehold, as recounted in this week’s newspaper column, available online at The Ely Times, the Elko Daily Free Press and the Mesquite Local News.

To this date 85 percent of the land betwixt the borders of the “state” of Nevada are completely controlled by Parliament on the Potomac, which by most definitions would make Nevada more of a colony than a sovereign state. Of all the states, Nevada has the greatest portion of land controlled by the federal bureaucracy.

As if to underscore Nevada’s tenuous standing in regard to its fellow states, the state Constitution, inked in the waning days of the bloody Civil War, contains what can only be described as an unconditional refutation of the words of Thomas Jefferson in the Declaration of Independence.

Jefferson wrote in 1776 to justify the separation of the American colonies from the despotic rule of England, “Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government …”

In the Paramount Allegiance Clause, the Nevada Constitution uses similar language but then eviscerates and denies its meaning.

“All political power is inherent in the people[.] Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it,” the document reads, pointedly and obviously omitting the key word “abolish.” “But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers … The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existance [existence], and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.”

Though such wording was common in Reconstruction Era state constitutions, only three still retain them.

It’s not like the states haven’t challenged Washington’s hegemony.

In fact the Western states petitioned Washington over its refusal to turn over federal land to the states. “It is of pressing moment that the public lands should become the property of their citizens, with the least delay compatible with the national interest. …” the petition states.

It argues, “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.”

Actually the petition was successful. It was issued in 1828 by the “Western states” of Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida. Today, the federal government controls only 4 percent of the lands in those “Western” states, while it controls 50 percent of the current Western states.

In a 1996 constitutional amendment, Nevada voters asked that federal land be turned over to the state. Congress has simply ignored “the Right of the People to alter” their government for 18 years.

As if to timely illustrate Washington’s total control of land within the state boundaries, Nevada’s senior senator, Harry Reid, recently drafted a bill that would remove from most productive uses more than 800,000 acres of land in the Garden and Coal valleys in Lincoln and Nye counties.

Whether it passes is entirely up to Congress, in which Nevada has only six out of 535 votes. Nevada’s governor, its lawmakers, the local county commissioners, the residents have no vote, no adequate representation.

Local officials have opposed the withdrawal of the land, just as the officials and residents of Lyon County opposed the 48,000-acre Wovoka Wilderness designation that Harry Reid insisted on as a condition for allowing Yerington to buy at market value 12,500 acres of federal land for commercial use — a bill that has passed the House but is languishing in Reid’s Senate.

Happy, sesquicentennial, Nevada, though not of “statehood.”

Newspaper column: What the Disclaimer Clause was really intended to accomplish

When Nevada became a state in 1864, its new Constitution contained a so-called Disclaimer Clause, just like every other new state being admitted, in which the residents of the territory were required to “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.”

The state disclaimed all rights and title “forever,” but the U.S. was not handed those rights and title “forever,” according to this week’s column, available online at The Ely Times and the Elko Daily Free Press.

The language was merely a legal formality to fully clear the title to said unappropriated land, as is explained by Steven Miller, managing editor of Nevada Policy Research Institute’s Nevada Journal, in a primer on the proper handling of federal public land in the West called “Broken Compact: The Hollowing-Out of Nevada Statehood.”

The Disclaimer Clause is not an obstacle to disposal of federal land, but a vehicle for doing so. For the federal government to dispose of land within Nevada and other states that joined the union after the original 13, but on “equal footing” with the original states, it first had to have free and clear title to the land. “No market existed for encumbered properties with clouded titles,” Miller notes.

But to this day 87 percent of Nevada remains in the hands of federal agencies — mainly Bureau of Land Management, Fish and Wildlife Service and Forest Service — as does roughly half the land in the West.

Nevada’s enabling act states that the land “shall be sold,” with 5 percent of proceeds going to the state.

The original intention seems pretty clear. Obtain clear title. Sell the land. Divide the proceeds. Clear out.

Read the entire column at Ely or Elko.

Rural congressmen willing to consider state taking over federal public lands

Both of Nevada’s congressmen who represent everything north of Clark County in Washington say they are interested in finally pulling off the shelf and dusting off an amendment to the state’s Constitution that was twice approved by the state Legislature then approved by the voters in 1996 — a measure to allow the state to take control of at least some federal public lands, as reported in this week’s newspaper column available online at The Ely Times and the Elko Daily Free Press.

The 1996 amendment removed the Disclaimer Clause from the Constitution that said the state “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.”

Wild horses on BLM land

Rep. Mark Amodei sits on the House Subcommittee on National Parks, Forests and Public Lands, which is chaired by Utah Rep. Rob Bishop, one of the leaders of his state’s efforts to gain control of federal land. “When I talked to Rob Bishop, I said, listen, Rob, we want to control it, but I want to do a little bit more homework,” noting the federal government has more money to spend on public land issues than the state.

Because of the expense, Amodei said for the immediate future he would like to cherry pick the areas over which the state would take control — those near urban areas or with minerals or can be used for agriculture.

Rep. Steven Horsford said he too was aware of the 1996 amendment and it is time to discuss what can be done.

Horsford, who represents the central part of the state, said that when he was in the state Senate the issue came up and he asked for a legal opinion and did some study on the matter. “Basically, as you know, when Nevada was brought in to the Union during slavery and the public lands were provided, the federal government’s role was really to serve as trust …” he said, “until such time as the state could handle the land, because it did not yet have the proper infrastructure in place.

“So I understand the history. I understand the intent behind how it was supposed to happen. What I don’t understand is why it never happened and there was never that cooperation between our state and federal officials to get control.”

He said discussions need to start anew.

Read the entire column at the Ely or Elko website.