How to slake the thirst of future development?

R-J graphic showing proposed land use changes.

Sometimes a story is most noteworthy for what it doesn’t say.

The morning newspaper reported on how the Southern Nevada Water Authority plans to supply water to a 39,000-acre tract of private development mostly south of Henderson should the federal government agree to release the land. The plan is to use conservation and recycling of water from Lake Mead.

Not one word was mentioned about piping groundwater from Lincoln, Nye and White Pine counties. The current plan is to pump 84,000 acre-feet of groundwater a year to Las Vegas at a cost of $15 billion for the infrastructure alone.

A year ago a federal judge heard arguments from proponents and opponents of the proposed project, which was first broached in 1989.

The judge refused to halt the project but ruled that the Bureau of Land Management must conduct further environmental review of the effects of the project and identify what can be done to mitigate them. According to an AP account, the judge characterized the fixes he ordered as “narrow deficiencies” in environmental impact statements.

Both sides interpreted the ruling as favorable to their side.

But today’s news story on supplying water to the proposed private development makes no mention of the groundwater from the north, even though the valley has maxed out its 300,000 acre-foot annual allotment from Lake Mead.

“The one-page document calls on far-flung developments to discourage or outright ban things like man-made lakes, water-cooled power plants and decorative turf,” the story relates. “Those developments should return their treated wastewater to Lake Mead whenever feasible or reuse enough of it on-site to ‘displace the need for SNWA water resources,’ the policy states.”

Protesters oppose Clark County taking rural Nevada groundwater.

Newspaper column: Bundy acquittal renews debate over federal land

Ryan Bundy at the Malheur National Wildlife Refuge in Oregon this past January. (AP photo)

Ryan Bundy at the Malheur National Wildlife Refuge in Oregon this past January. (AP photo)

Apparently the unexpected acquittal in Oregon — on charges of illegally occupying a wildlife refuge to protest the jailing of father and son ranchers over fires that got out of control and burned a few acres of federal public land — has emboldened one of the Bundy brothers to the point of braggadocio.

In a telephone interview this past week from his jail cell Ryan Bundy told The Washington Post that there could be protests if Obama goes ahead with plans to designate the Gold Butte area, next to his family’s Bunkerville ranch, as a national monument.

Bundy — who remains jailed while awaiting a February trial in Nevada, along with his father, three brothers and others, over the armed standoff in 2014 with BLM agents trying to confiscate the family cattle — told the Post, “The government should be scared. They are in the wrong. The land does not belong to the government.”

He warned that, as the Declaration of Independence states, the people have a right to abolish an abusive government.

The Post dismissed out of hand his arguments about who lawfully should be controlling federal public land, saying his arguments are “disputed by most mainstream constitutional scholars.”

Bundy argues that the Constitution does not grant the federal government the power to control vast tracts of land, nor does it give the president authority to single-handedly create national monuments.

His ill-advised bluster about revolution aside, there are legal scholars — perhaps not mainstream in the eyes of the Washington Post — who say Bundy and his ilk have a point.

Article IV, Section 3 of the Constitution reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States …”

The question is whether Congress may abdicate that power, as it did with the Antiquities Act of 1906, granting presidents the power to create monuments.

A Heritage Foundation essay by a federal judge argues it does not: “Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the ‘accumulation of all powers, legislative, executive, and judiciary, in the same hands,’ writes James Madison in Federalist No. 47, ‘may justly be pronounced the very definition of tyranny.’”

The Supreme Court three times has upheld the Antiquities Act, but on arguments other than constitutionality.

Then there is also the question of whether the Founders intended that the federal government control vast acreage inside sovereign states.

Rufus King

Rufus King

James Madison wrote in 1787 that Elbridge Gerry raised concerns during the drafting of the Constitution 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 legislature of the state.” It passed unanimously.

Yet none of the legislatures of the Western states has ever consented.

This issue was addressed in 1828, when Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida petitioned to gain control of federal land within their boundaries.

Their petition to Congress read in part: “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 …”

It went on to say the land needed to be sold “within a reasonable time” so it could be taxed and government services provided.

Today the federal government controls only 4 percent of the lands in those states, while it controls 50 percent of the Western states, including 86 percent of Nevada.

The 1864 Nevada statehood document promises the state would get 5 percent of proceeds when “public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …”

It is 152 years subsequent to admission. Is that within a reasonable time?

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.

Behind the Bundy bluster is there a constitutional leg to stand on?

A sign at the entrance to the Bundy family’s ranch in Bunkerville, Nev. (Ronda Churchill for The Washington Post)

A sign at the entrance to the Bundy family’s ranch in Bunkerville, Nev. (Ronda Churchill for The Washington Post)

Even though he is still in jail, apparently the acquittal in Oregon has emboldened one of the Bundy brothers to bluster.

In a Monday telephone interview from jail Ryan Bundy told The Washington Post that there could be protests if Obama goes ahead with plans to designate the Gold Butte area next to his family’s Bunkerville ranch a national monument, something Sen. Harry Reid has said is all but certain before he and Obama leave office in January.

Ryan Bundy

Ryan Bundy

Bundy — who still faces a February trial in Nevada, along with his father Cliven, three brothers and others, over the armed standoff in 2014 with BLM agents trying to confiscate the family cattle — told the Post, “The government should be scared. They are in the wrong. The land does not belong to the government.”

He warned that, as the Declaration of Independence states, the people have a right to abolish an abusive government.

 

“The only peaceful resolution to all this is for them to obey the Constitution,” he told the Post. “Read it, understand it, abide by it. There doesn’t have to be violence. None of that has to happen if they would just abide by the Constitution.”

Asked whether violence was justified, Bundy tersely told the paper, “Ask George Washington.”

The Post dismissed his constitutional arguments out of hand, saying:

Repeating an argument common in the West but disputed by most mainstream constitutional scholars, Bundy said the Constitution does not grant the federal government power to own large tracts of land, nor does the president have legal authority to create national monuments. Bundy said that creating the Gold Butte monument would be an abuse of presidential power and a valuation of tourism and endangered species over the economic needs of struggling communities.

Article IV, Section 3 of the Constitution reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States …”

The question is whether Congress has the power to abdicate that power and turn it over to the president, as it did with the Antiquities Act of 1906.

Heritage Foundation essay by a federal judge argues it may not:

Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the “accumulation of all powers, legislative, executive, and judiciary, in the same hands,” writes James Madison in Federalist No. 47, “may justly be pronounced the very definition of tyranny.” While the executive must exercise some discretion in the application of law, lawmaking remains the prerogative of Congress. Since the New Deal, the Supreme Court has unfortunately sanctioned ever greater delegations of legislative power to administrative agencies. That the courts have flouted this principle does not mean that Congress can or should ignore this element of constitutional construction.

Still the Supreme Court has upheld the Antiquities Act three times, but on arguments other than constitutionality.

Then there is also the question of whether the Founders intended that the federal government control vast swaths of land in the sovereign states.

James Madison wrote in 1787 that Elbridge Gerry raised concerns during the drafting of the Constitution 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 legislature of the state.” It passed unanimously.

Yet none of the legislatures of the Western states, where the federal government controls so much land, ever consented.

This previously was addressed in 1828, when the Western states of Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida petitioned to gain control of federal land:

The petition read:

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 numerous petitions, memorials, and legislative resolutions, heretofore presented from them, evince the lively and anxious concern with which the present state of things impresses them.

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.

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, including 86 percent of Nevada.

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.

So, who is right? Bundy or most mainstream constitutional scholars? With or without the saber rattling.

 

 

 

Newspaper column: Bills to turn over federal land to local governments advance

Both of Nevada’s congressmen who represent the rural areas — Mark Amodei in the north and Steven Horsford in the south — put out verbatim press releases heralding the passage out of the House Natural Resources Committee by unanimous consent a package of seven bills that could have major economic impact on several communities if ever signed into law, as reported in this week’s newspaper column, available online at The Ely Times, the Elko Daily Free Press and the Mesquite Local News.

The same set of bills passed the same committee in January by a vote of 29-14, though there reportedly has been some tweaking of the bills since then.

The press releases said the bipartisan support clears the way for the legislation to be brought to the House floor in September as a non-controversial suspension bill.

For his part Amodei was quoted as saying, “These are community-driven lands measures that will create jobs without cost to the federal taxpayer. For the second time in two years, the eyes of Northern Nevada turn to the Senate.”

Pumpkin Hollw

While the congressman from northern Nevada was not so gauche as to spell out what he meant by that remark, allow us to explain.

The Senate is under the leadership of Nevada’s senior senator, Harry Reid, who has not deigned it a priority to push various versions of these bills, including ones he and Sen. Dean Heller have sponsored over on the Senate side.

In fact, when last one of the bills in question progressed to the point of actually being voted on, Reid threw a monkey wrench into the works. What is now called H.R. 696, the Lyon County Economic Development and Conservation Act, would allow the town of Yerington to buy, at market value, 12,500 acres of federal land adjacent to the Pumpkin Hollow copper mine for an industrial park. It is estimated the project could create 800 to 1,000 permanent jobs and about 500 jobs during the construction phase.

But Reid demanded that the bill include designation of 48,000 acres of wilderness, to be called the Wovoka Wilderness Area, a proposal the local residents had previously rejected. it now does.

The Yerington bill now has languished in Congress for six years.

Other bills in the package involve land in Humboldt County, Storey County, Carlin, Fernley, Elko and the Fallon Naval Air Station. That last land deal has been pending since 1991.

Harry Reid should take a little time between rants about the Koch brothers to put these bills to a Senate vote.

Read the entire column at Ely, Elko or Mesquite.

Reid discusses Yerington land bill … in December 2012:

 

Tell me again how the federal government has the right to hold so much Nevada land

Does the federal government have the power to own and control vast land holdings within the sovereign boundaries of any given state? It obviously has the power, because it has controlled more than 80 percent to the lands in Nevada for nearly 150 years.

But does it have the right or moral authority?

Article IV, Section of the Constitution says: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

Was it the intent of the Constitutional Convention to allow the federal government — under limited and enumerated powers —to hold open land in perpetuity and out of productive commerce?

Constitutional scholar Rob Natelson writes in a University of Colorado Law Review article:

“As understood at the time of ratification, the Constitution did not permit the federal government to retain and manage land  indefinitely for unenumerated purposes. Massive, permanent federal land ownership would have been seen as subversive to the constitutional scheme. The federal government’s authority to dispose was unlimited (except for trust standards), but its authority to acquire, retain, and manage was not: all the latter functions could be exercised only to serve enumerated powers. To be sure, Congress would have considerable discretion as to how to effectuate enumerated powers, and reasonable exercises of discretion were not to be questioned. At the end of the day, however, all federal land not ‘necessary and proper’ to execute an enumerated power was to be disposed of impartially and for the public good. … Generally, though, the Constitution’s original meaning was that lands not dedicated to enumerated functions were to be privatized or otherwise devolved on terms that best served the general interest.”

Enumerated powers to create and hold such things as “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings …” not vast open range.

According to the 10th Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In 1828 the states of Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida petitioned Congress for the release of federal lands within their boundaries. Their argument was successful:

“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.”

Nevada and the rest of the West has been waiting impatiently for the disposal of those federal lands.

Numerous stories about the Cliven Bundy standoff with the Bureau of Land Management have mentioned the Disclaimer Clause in the statehood ordinance of Nevada —  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.” — only one so far as I have seen mentions the voters of Nevada amended the Constitution in 1996 to repeal that clause.

And none mentions the part that reads: “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 …”

With Nevada it was not an implied engagement. It was a promise.

In the case of Pollard v. Hagan in 1845, the Supreme Court held:

“The United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama, or any of the new States, were formed, except for temporary purposes, and to execute the trusts created by the acts of the Virginia and Georgia legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty of the 30th April, 1803, with the French Republic ceding Louisiana.

“Upon the admission of Alabama into the union, the right of eminent domain, which had been temporarily held by the United States, passed to the State. Nothing remained in the United States but the public lands.

“The United States now hold the public lands in the new States by force of the deeds of cession and the statutes connected with them, and not by any municipal sovereignty which it may be supposed they possess or have received by compact with the new States for that particular purpose.

“That part of the compact respecting the public lands is nothing more than the exercise of a constitutional power vested in Congress, and would have been binding on the people of the new States whether they consented to be bound or not.”

Not binding on the people of the new states whether they consented to be bound or not. Besides, how could the residents of the territory bind the residents of the state of Nevada for 150 years?

Aristotle quoting rancher testifies about ‘threats, intimidation and bullying’ by federal agents

(Warning: There are about two minutes of annoying leader noise on this video. Hage is seen at about 19:00, 33:00, 49:45 and 1:38:00.)

Video streaming by Ustream

On Tuesday, the House Subcommittee on Public Lands conducted a hearing on “Threats, Intimidation and Bullying by Federal Land Managing Agencies,” featuring a number of Western ranchers, including Wayne N. Hage, whose family has been fighting two federal agencies over grazing and water rights for their ranch near Tonopah for 23 years.

“Yes, it does go several generations,” Hage said in his opening remarks. “In fact, my father and my mother were first involved, filed the first action in the court against the federal government for takings. We’ve buried both of them. The case outlasted them, my dad then, before my dad had died he remarried to Congresswoman Helen Chenoweth of Idaho. We lost her as well and buried her as well.”

Wayne N. Hage testifies before a House subcommittee Tuesday.

Wayne N. Hage testifies before a House subcommittee Tuesday.

Hage told the subcommittee, which includes Nevada Rep. Mark Amodei, about how a federal judge in Nevada found two federal agents’ actions so egregious that he found them in contempt. But nothing was even done about it. One of the two has since retired.

Hage testified that during a hearing federal agency officials from Washington claimed that the two agents conducted themselves just as they should have, even though the judge ruled otherwise. So, these weren’t rogue agents. They were carrying out directions from Washington.

Hage also said he fully expects to face retaliation for his speaking to Congress.

The case, which has cost more than $4 million to wage so far, is on appeal to the 9th U.S. Circuit Court of Appeals. At one point a judge awarded the family $14 million, but was set aside pending appeals.

In written testimony, which followed somewhat his spoken testimony, Hage stated:

“It is warming to know that with regard to the Courts that we still have the Rule of Law. Although as I have found out it is nearly impossible to defend a persons property and rights in the courts due to the financial burdens and the length of time involved. (My Mother and Father filed the original case and were not able to live long enough to see the end of the litigation. My step Mother died before there was an end to the litigation and it is looking like my siblings and I may be in old age before this is concluded.) However there it is becoming very apparent that there is no rule of law with regard to the employs of the BLM, USFS and perhaps the DOJ, there we have the rule of man. I remind congress that Aristotle explained that the difference between a correct form of government and perverse form of government is that the former is the Rule of Law and the latter is the rule of man.”

Amdoei and another congressman from Colorado have introduced a bill called the Water Rights Protection Act.  It would prohibit federal land agencies from basically extorting water rights from those who use federal land.

Hage suggested that Congress should assess penalties on employees who break the law and violate civil rights under the color of law, that there should be an easier way to be able to hold agencies accountable.

“One of the biggest problems is that they claim their actions are actions of the Federal Government and thus they claim sovereign immunity, Hage explained. “The individual is then forced to go up against the full force and might of the Federal government and prove that it was not an action of the government in order to proceed. This is very difficult to do. We need to take the sovereign immunity away from Federal employs who break the Law.”

Hage was one a half dozen ranchers from Western states to testify before the committee about abuse from federal land agents.

It is long past time for Nevada to take control of federal land

Earlier this week, the House Natural Resources Committee approved Rep. Mark Amodei’s H.R. 761, the National Strategic and Critical Minerals Production Act of 2013, which requires federal agencies to expedite mining permits on federal land, setting a deadline of 30 months instead of the customary 10 years or more.

During debate on the bill a Utah congressman pointed out the bill would not be necessary if the states in the West controlled their public lands instead of far off federal agencies.

Meanwhile, in Carson City, Elko Republican Assemblyman John Ellison’s Assembly Bill 227 would create a task force to do just that, which is the topic of this week’s newspaper column, available online at The Ely Times and the Elko Daily Free Press.

Since the mid-1990s Nevada has been trying to take control of the 85 percent of the state controlled by the federal government.

In 1956 the voters of Nevada amended the state Constitution to allow taxation of federal lands, should the Congress ever consent. In 1996 the voters again amended the Constitution to remove the so-called Disclaimer Clause that gave dominion over the land to the feds.

And then … nothing. To this day, the state Constitution contains a note saying these amendments are to take effect when Congress or the courts act. Neither has.

AB227 would establish a task force to prepare for taking over federal lands by June 30, 2015. The task force would identify which public lands should be transferred and propose a plan for the administration, management, use, sale or lease of those lands. It also would perform an economic analysis of the potential costs and revenues of such transfers. Ellison colorfully describes the federal government’s dominion over the vast majority of state land for 150 years as “feudalism.”

The bill passed out of the Assembly with all 15 Republicans voting “aye,” but with 18 of the 26 Democrats voting “nay.”

AB227 contains a resolution that begins: “WHEREAS, Unlike the eastern states that received dominion over their lands upon joining the Union, the western states have been placed in an inferior position as a result of the Federal Government withholding a significant portion of land from those states as a condition of admission to the Union …”

There is a bit of an historic flaw in that statement. Actually, some Western states have successfully petitioned to acquire for themselves tracts of federal land, arguing:

“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. …

“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 …

“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.”

Those “Western” states, as they were called at the time, were Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama and Florida. The year was 1828. The argument became known as the Equal Footing Doctrine.

The petition apparently was successful. Today various federal agencies control the use of roughly half the 11 westernmost states in the lower 48 and Alaska, while only 4 percent of the rest of the states is under federal dominion.