(NOTE: a condensed version of this report appears in the Autumn, 2014 issue of “Range” magazine, on newsstands now.)
DOES THE FEDERAL GOVERNMENT OWN THE LAND?
Both Cliven Bundy and his friend Cliff Gardner, who ranches Nevada’s Ruby Valley hundreds of miles to the north near Elko and who also keeps getting hauled into federal court for refusing to comply with BLM “grazing plans” that have driven so many other Nevada ranchers into bankruptcy over the past 40 years, insist the Founding Fathers went to great pains to block the federal government from ever owning 86 percent of Nevada … 57 percent of Utah … 45 percent of the land mass of California … as Washington City now claims to do.
They insist they can find “no authority whatsoever” for the federal government to “hold and manage lands within an admitted State” aside from the power granted in Article I Section 8 of the U.S. Constitution, which authorizes the federals to purchase specific parcels “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” -– a provision which would hardly seem to apply to the millions of acres of western grazing land.
“It is the BLM, not Cliven Bundy, who is in violation of the law and the Constitution, specifically Article 1, Section 8, Clause 17 of the U.S. Constitution,” agrees Kurt Nimmo, writing at the infowars.com web site on April 11, 2014.
During the federal convention debates in September, 1787, Mr. Nimmo notes, Elbridge Gerry, who later went on to serve as vice president under James Madison, contended federal purchase of land “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.”
In order to make certain the federal government did not abuse the Enclave Clause, the words “by the Consent of the Legislature of the State” were added.
In 1992, Mr. Nimmo notes, the Supreme Court issued an opinion on the framers’ reasoning behind the state consent requirement (New York v. U.S):
“The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”
Yet “Despite the desire of the founders and the originating principles of the nation, . . . the federal government has repeatedly and habitually” wielded “dictatorial authority in Nevada and throughout much of the West,” Mr. Nimmo reports.
That’s what this is all about. Can the national government in Washington simply declare it owns whatever it wants to own? Or is there still a “divided sovereignty” which protects Awericans’ liberties by restricting Washington’s agents to wielding only those powers specifically enumerated?
“The United States government owns and has broad authority to regulate federal lands in Nevada,” the BLM insists. “In response to challenges of federal ownership of the lands in Nevada, the 9th circuit held that the federal government owned all federal lands in Nevada, and that those lands did not pass to the state upon statehood.”
But that’s nonsense. To start with, saying “The federal government owns the federal lands” is a circular statement, as meaningless as saying “All blue skies are blue.” Everyone agrees Washington owns the land under the post offices in Elko and Las Vegas -– the question is which other Nevada lands, if any, are “federal lands”?
And who in his right mind would trust the U.S. government -– including the branch of that government known as the “federal courts” -– to answer that question? That would be like asking the fox whether he has a right to eat the chickens.
Some of us can still recall that for the first 120 years of Nevada statehood, the federal government rested its claim to “control” and “manage” 86 percent of the land area of Nevada on the agreement of the Nevada Territorial Legislature, prior to statehood, that said control would not be challenged, whereas the advocates of state sovereignty argue the coercive extraction of this promise in return for statehood could not be binding on the STATE Legislature which came into being in 1864, since all states enter the union on an “equal footing.”
(Statehood was rushed along with the help of an enabling act promising that Washington would sell off surplus lands beyond what was needed for military bases and similar facilities, of course. Ask any Indian –- or Nevadan — what such federal promises turn out to be worth.)
“1979 legislation introduced by then-state Sen. Dean Rhoads, directing the state attorney general to sue the federal government for control of all federal lands not specifically set aside for federal forts, post offices or Indian reservations, is still a part of Nevada law,” Tim Findley reported in the pages of “Range” magazine, 15 years ago, “backed even more by a statewide referendum in 1996 in which voters overwhelmingly supported the idea of state control of public lands.”
Yet only at the dawning of the 21st century has the federal government begun to assert in court that they “own” all this land.
Why this change? Is it just a failure to grasp — as many in the Third World have now learned the hard way — that grassland ecosystems evolved to need a hoofed grazing animal to lay down manure, trample down last year’s growth and tread the seeds into the soil, that these lands turn to desert when cattle are removed? Or is it something else?
I used to class it as a far-fetched “conspiracy theory,” but could it be that Washington, with its need to keep heavily borrowing from foreign powers to sustain its addiction to deficit spending, wants to drive all human habitation from these lands, and claim to “own” them, so they can be pledged as collateral to foreign creditors?
We’ll return later to Sen. Harry Reid’s involvement in promoting a big Red Chinese solar plant between the Bundy Ranch and Las Vegas -– a plant supposedly declared dead in July of 2013 when even Sen. Reid’s arm-twisting failed to win commitments from California and Nevada utilities to buy the high-priced Chinese power. We’ll also demonstrate that said solar plant apparently needed the Bundy Ranch as a barricaded wildlife sanctuary to serve as a “mitigation area” to compensate for the “tortoise habitat” the Chinese solar panels would destroy.
Cliven Bundy also took pains on April 24 to show me a “trophy” now sitting on his mantel — one of the “Temporarily closed” signs the BLM posted on roads leading into his grazing lands in early April. At each bottom corner, the triangular BLM logo has superimposed on it a shield, closely resembling a policeman’s badge.
“Doesn’t that look like they want people to think they’re a police agency?” Cliven asks.
Because they’re not.
‘BLM IS ACTING IN A LAWLESS MANNER IN NEVADA’
Immediately after the April 12 BLM withdrawal, Texas Republican Rep. Steve Stockman sent a letter to Barack Obama, Department of the Interior Sec. Sally Jewell, and BLM Director Neil Kornze, laying out his position that police actions by the agency would violate the U.S. Constitution.
“Because of this standoff,” he wrote, “I have looked into BLM’s authority to conduct such paramilitary raids against American citizens, and it appears that BLM is acting in a lawless manner in Nevada.” He cited the limited powers granted to the federal government, noting the bureau has no “right to assume preemptory police powers, that role being reserved to the States,” and explained “many federal laws require the federal government to seek assistance from local law enforcement whenever the use of force may become necessary.” The letter included a section of the U.S. Code — 43 U.S.C. Section 1733, Subsection C — stating exactly that point:
“When the Secretary determines that assistance is necessary in enforcing Federal laws and regulations relating to the public lands or their resources he shall” (not “may” but “shall”), ”offer a contract to appropriate local officials having law enforcement authority within their respective jurisdictions with the view of achieving maximum feasible reliance upon local law enforcement officials in enforcing such laws and regulations.”
In the case of the Bundy Ranch, Congressman Stockman continued, “the relevant local law enforcement officials appear to be the Sheriff of Clark County, Nevada, Douglas C. Gillespie.
“Indeed,” Stockman wrote, “the exact type of crisis that the federal government has provoked at the Bundy ranch is the very type of incident that Congress knew could be avoided by relying on local law enforcement officials.”
“The federal government does not have the constitutional authority to own land, beyond what is stipulated in the Enclave Clause,” Mr. Nimmo of Infowars continues. “Madison made if perfectly clear in Federalist Paper 45:
“ ‘The powers delegated by the proposed Constitution to the federal government are few and defined… The [federal powers] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce… the powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.’ ”
“It’s really about our constitutional rights and statehood,” Cliven Bundy insists. “And whether this area known as the state of Nevada is owned by the United States government or is owned by the sovereign state of Nevada.”
The liberal press tends to dismiss such statements as equivalent to those of some amusing lunatic, dressed in Confederate gray and insisting the Yankees never won the War of the Southern Secession.
But “Mr. Bundy, despite a propaganda campaign to the contrary launched by the federal government and its subservient media, is absolutely correct,” Mr. Nimmo concludes.
This is why the jurisdictional question -– which the federal courts adamantly refuse to answer — is so important. If the federal courts are administering these lands as though they’re still a territory, they’re denying they lie within a sovereign state. But if they admit they lie within a state, Gardner in the Ruby Valley and Bundy on the Mesquite Allotment have rights to confront their accusers, to know the nature of the charges against them, rights to a jury trial by their peers, and most of all the right to have their grazing and water rights adjudicated in STATE, not FEDERAL court.
Instead, the federals merely got Johnnie Rawlinson, a particularly embarrassing appointment to the federal court (not because she’s a black affirmative-action appointee, though she is, but because lawyers who have tried to discuss the law with her say she is unusually lacking in ability to grasp these concepts) by one Sen. Harry Reid, to agree with the contention that the federals own this land because they acquired it from Mexico in the Treaty of Guadalupe Hidalgo in 1848.
But as Cliven Bundy points out, that was 16 years before Nevada became a state. What happens to public lands when a territory becomes a state? Under the Constitution drawn up for us by the Founders (who feared a federal monopoly on power), ownership and control of the public lands must pass to the state. Otherwise, the federals could claim to own and wield “plenary” authority over as much as 86 percent (heck, probably 100 percent) of the land area of Arkansas, Missouri, Iowa, Minnesota, Montana, Colorado, and points in between, having “acquired them” by purchasing them from a cash-hungry Napoleon Bonaparte as part of the Louisiana Territory in 1803.
‘AND BESIDES, HE’S A RACIST’
Is that the case? Do residents of those state have to apply for permits and “pay their fees” to the BLM to use 86 percent of the lands in those states in order to farm or graze livestock or do anything else – permits under which the BLM can order them to “get off the land from February to June” -– even if this would clearly bankrupt them — because the federals have decided to establish at gunpoint a Green religion whose practitioners worry a human presence might bother the offspring of some supposedly “threatened” species of weed, moss, reptile, or bug?
Have they been informed this is what the federals now contend -– backed up by their black-robed popinjays on the federal courts and a Homeland Security army that’s been buying up small-arms ammunition at such a rate that gun stores are experiencing a nationwide shortage -– and that those states are next?
I’m serious. Imagine with me for a moment that your family has been farming the same land in Iowa since the 1870s. Around 1946, the guy in charge was your dad or grandfather, fresh back from fighting World War II, full of patriotism. A fellow shows up and introduces himself: “I’m from the new federal Bureau of House and Farm Management, just chartered this year We know some of you farm folk are having a hard time getting back on their feet after the war, so here’s the deal: We want to sign an agreement under which we recognize that you and your family have got sole right to live here and farm this land. We’ll adjudicate and defend your boundary lines. Furthermore, we’ll give you free advice on the latest scientific findings as to the best kinds of crops to grow, irrigation methods, and so forth, plus we can get you federal help paying for fences, wells, a new stove and refrigerator, what do you say?”
Grandpa asks “What’s the catch?” and the men tell him he has to pay a fee of $20 per year for their help. He signs. But every year it gets harder and harder to deal with these guys -– their “advice” starts sounding a lot more like “orders” about what and how to plant, requiring more and more land to be left fallow, even as their fees go up. Finally, about 1993, they arrive to instruct you that under the new deal your annual fee will go up from $2,000 to $4,600, and you can’t sleep in your house, cook meals in your house, or use the toilets in the house between February and July, since that’s the breeding season of an endangered species of bug that lives in the area, and you might disturb the bugs.
Is it really so far-fetched that you might at that point say “That’s just crazy. Get out of here. I ain’t signin’ nothin’. You’re fired”? How would you feel if, 20 years later, the federals sent in hundreds of armed combat troops to seize your crops, blaring over the national television news for everyone to hear that “We own that land; we bought it as part of the Louisiana Purchase in 1803” and “This guy is just a trespassing tenant farmer bum who’s refused to pay his rent for the past 20 years, and now owes us a million dollars. Do you think he should be able to use that public land forever, for free?” and “Anyone who stands with him and against us is a violent domestic terrorist” and “What’s more, he says the federal welfare state is nothing but a new plantation, so he’s a racist, too”?
Cliven Bundy was all over the media in the two weeks following the April 12 federal withdrawal. The statists in Washington were obviously desperate to discredit him and change the subject. Once he was lured by a New York Times interviewer into making remarks about today’s welfare state being equivalent to a slave-owner’s plantation, they figured they had all they needed to dub him a racist. Daily papers including the Las Vegas Review-Journal raced to cover the “racist” angle, dropping any discussion of federal land ownership and jurisdiction, or why an agency charged with “promoting beneficial uses of the land” is now trying to shut down cattle ranching entirely, throughout the West. Such topics are harder to explain, and had obviously been making the liberal editors nervous, anyway. The problem, of course — for anyone who values facts and logic above pantomimed “outrage” — is that Bundy is right, and the observation isn’t even new. Syndicated columnist Star Parker’s book “Uncle Sam’s Plantation: How Big Government Enslaves America’s Poor and What We Can Do About It” (note the use of the word “enslaved”) was published in 2003, to largely enthusiastic reviews. Yet no one calls Star Parker a racist . . . because she’s black.
The Founders could have written “But all unclaimed lands in territories which shall henceforth become states shall be owned in perpetuity by the federal government,” if they do desired. But they never did, did they?
If the federals were to send in armed combat troops to evict citizens of Iowa or Colorado from lands their families have farmed or grazed for a century or more, would most Americans just shrug, parroting back the sound bite: “Well, they didn’t pay their fees. After all, those lands belong to all of us; they shouldn’t get to use them for free”?
Wouldn’t we call that “Communism”?
“Back before ’34, before the Taylor Grazing Act, they started to have range wars,” Cliven Bundy tells me. “Instead of settling it (boundary disputes) in local and state courts, the federal government got involved. It was the ranchers’ fault; they never should have allowed it to start. They started payin’ the Taylor Grazin’ fees in ’34, to adjudicate the boundaries. The adjudicatin’ went on right up through the ‘60s. Then they needed fences and water. The ranchers PAID for that adjudication, 6 to 10 (dollars) per (animal unit) and they were gettin’ 80 percent of the fees back in range improvements. Twelve-and-a-half percent were supposed to go the BLM for administration, and then the rest were for range improvements.”
It was when he finally realized his own fees and willingness to sign off on their “range management plans” were being used to drive him out of business that Cliven finally fired the BLM, telling him he no longer needed their help or advice to manage his ranch, he says.
NEXT TIME: COULD BUNDY HAVE ‘JUST PAID HIS FEES’ AND STAYED IN BUSINESS?
(END PART TWO OF SIX, “Driving the Ranchers off the Land.”)
FOR PART THREE, click HERE.
FOR PART ONE, click HERE.
NOTE: Newsstand distribution of “Range” can be quirky, through no fault of the publishers. But anyone can call 1-800-RANGE-4-U and ask for a sample copy (or pay $5 to have the current issue mailed.)