Newspaper column: Whither the state’s effort to take control of public lands?

In March 2015 Congressman Mark Amodei, who represents northern Nevada, introduced H.R. 1484, dubbed the Honor the Nevada Enabling Act of 1864 Act, which, if passed, would require the Departments of Agriculture and Interior to convey to Nevada a portion of the federal public lands they now control and thus partly fulfill an implied promise do so when Nevada became a state 152 years ago.

The House Natural Resources Subcommittee on Energy and Mineral Resources finally got around to conducting a hearing on the bill this past week, though Amodei had been seeking such a hearing for more than a year. The subcommittee took no vote and Amodei is under no illusion the bill has a chance of passage in this session of Congress.

The bill calls for the federal government to transfer ownership of 7.2 million acres of public land to the state in its first phase and about 10 million acres in a subsequent phase. That would still leave the feds controlling about 70 percent of Nevada’s land mass, but down from the current 87 percent, the most of any state.

Testifying in favor of the bill was Elko County Commissioner Demar Dahl, who chaired a year-long study of the land transfer proposal by the Nevada Land Management Task Force.

Demar Dahl testifies before House subcommittee.

“I had an opportunity to meet with President-elect (Donald) Trump in August,” Dahl said in his opening remarks. “I said, ‘If you had a hotel with 10 floors on it and eight of those floors were controlled by a bureaucracy that you had virtually no control over that was over 2,000 miles away, how would that work?’

“And he said, ‘I think that you’re actually closer to 90 percent owned and controlled in the state of Nevada by the federal government than you are to 80.’ And that’s true — 87 percent of the state of Nevada is owned and controlled by the federal government.”

The task force Dahl headed up was created by the state Legislature in 2013 and consisted of one member of every county commission in the state, 17 in all.

At their first meeting Dahl said he asked the members whether they thought at the time it was a good idea to transfer land to the state, and more than half said it was not a good idea or they were not sure.

Over the next year the task force met 13 times to hear testimony from state agencies, the Farm Bureau, the Sierra Club, various sportsman groups and other stakeholders.

“As we went through the year I could see the lights come on of all of the members and by the time we finished every member was supporting the transfer of the public lands,” said Dahl, a rancher.

An economic analysis contracted by the task force found that the state could expect a net revenue of $350 million a year from controlling the land.

All 17 county commissions voted to support the land transfer effort and in 2015 the proposal passed both houses of the Legislature and resulted in H.R. 1484.

“On the issue of transferring the public lands we discovered that there is more among the residents of the state that unites us than divides us. For the sportsmen, the environmental community and resource users there’s much that we can agree on,” Dahl told the subcommittee. “For instance, 1484 calls for the transfer of all valid existing rights and uses. If you can hunt, fish, camp, graze or prospect on the public lands now, you will be able do it after the transfer.”

No parks, monuments, military or Indian land would be transferred.

Subcommittee Chairman Doug Lamborn of Colorado said to Dahl that people in other parts of the country think residents of the West don’t care about the federal lands, that states would allow a few more barrels of oil to be tapped under a world-class trout stream and the people on either coast need to tell us what to do.

Dahl replied, “My question would be: Why would the people who live there and care for the land, who are able to use it more than anyone else, even though after the transfer people from all over the world will continue to be able to use it, but why would the people of Nevada care less about the land and care less about preserving it for their children, their children’s children and for generations to come?”

Two of the bill’s co-sponsors — Republican Joe Heck and Cresent Hardy — were defeated in the recent election. Where will their Democrat replacements stand on this bill?

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.

 

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.