The Bureau of Land Management (BLM) has temporarily shut down its operation to seize Cliven Bundy’s cattle, and federal forces stationed in the area retreated in response to his loyal, gun-toting followers. But the rhetoric is still flying fast. Last Thursday, Nevada Sen. Harry Reid called Bundy and his cohort “nothing more than domestic terrorists.” The ranch rebellion continues to stir mixed sympathy and outrage as its burgeoning audience considers the state vs. federal principles at stake.
Some readers thought my first piece on the rebellion was meant to defend the BLM’s actions or federal laws in the case. But if there is any way Bundy can receive rights to graze on the land, and if Nevada can claim state ownership of those lands, I would wholeheartedly support such measures. I do think staking out with guns on the prairie, and “strategizing to put all the women up at the front” in case federal officers start shooting, aren’t the best ways to fight for state rights. However, there are other, perhaps more promising avenues that Bundy should consider.
Grazing limits were established after the BLM decided to protect an endangered tortoise in Bundy’s vicinity. But the Nevada Cattlemen’s Association told the Washington Examiner that there is no “scientific proof” cattle have ever harmed the tortoise in question. Are there people on Bundy’s team researching this, amassing evidence, putting together a solid case? If they can prove this, they could get greater access to the land.
The Washington Examiner presented another case from a different but promising angle, pointing to the research of deceased farmer Wayne Hage, who faced arraignment for “cleaning brush out of his ditches without a U.S. Forest Service permit.” After extensive research, Hage wrote a book arguing there are “private rights in federal lands – vested rights, not privileges.” The Examiner explains:
Private rights in federal lands were recognized in an 1866 water law. It says, “… whenever, by priority of possession, rights to the use of water have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same.”
This could be a promising argument in Bundy’s case—though it would not, unfortunately, restore the federal lands to state ownership. And this case is, at root, a question of federal vs. state ownership. Is there a constitutional argument that might promote state ownership in the region?
The New American argues that Nevada has rights to the land via Pollard’s Lessee v. Hagan, which said Alabama was entitled to sovereignty over all lands she possessed “before she ceded it to the United States.” In the same way, argues author Joe A. Wolverton, Nevada “owns the land where Cliven Bundy’s cattle fed, and Bundy — who has preemptive rights for his cattle to feed there — has faithfully and fully paid that landlord the rent he owed it.” According to BizPacReview, Bundy has been arguing the exact opposite of Wolverton’s suggested case: “According to the ranchers’ argument, the federal government ‘owned’ or controlled every territory before it became a state, but once statehood was reached, the land became the property of the new state.”
So which is it? Does the government have a prior claim to the Nevada territory? Or, as Bundy argues, did that land revert to Nevada when it became a state in 1864?
Unfortunately, the federal government owned Nevada territory before it became a state, via the Treaty of Guadalupe Hidalgo, which was signed at the end of the Mexican-American war in 1848. Demar Dahl, a friend of Bundy’s and a Nevada county commissioner, told The Blaze that the feds have a prior claim to Nevada land. But Dahl is part of a taskforce seeking to transfer control of some 600,000 federal acres in Gold Butte, Nevada, to state hands. Perhaps Bundy supporters can work with Dahl’s team to support and further this venture.
Other states in the west face similar frustrations over land ownership. The federal government owns 66.5 percent of the land in Utah, 53 percent in Oregon, and 61.7 percent in Idaho. But Idaho Rep. Raúl Labrador was able to pass a grazing bill in February, one that extends livestock grazing permits on federal lands from 10 to 20 years. Wyoming Sen. John Barrasso passed a similar grazing bill, allowing the BLM and U.S. Forest Service to continue issuing permits to farmers “while required environmental analysis is pending.” While we might prefer a complete rescinding of such permits, Labrador and Barrasso are protecting farmers and providing a way for them to co-inhabit the land as long as possible—at least until they can procure fuller rights in the region.
Labrador’s bill H.R. 1526, the Restoring Healthy Forests for Healthy Communities Act, passed the House last fall. The bill transfers management of about 200,000 acres of Idaho’s federal land “to the state as a trust,” according to a piece by Labrador in the Idaho Statesman. Obviously, this isn’t as thorough a turnover as we might like. Why only 200,000 acres when the federal government owns a whopping 32,635,835? Nonetheless, if Labrador can prove that the state-managed 200,000 fares better than the government’s remaining 32,435,835, then the state can acquire more land in the future. He will have proved the benefits of state-managed property.
Nevada could—and perhaps should—try a similar move. But before that happens, Nevada voters may need to vote for candidates that support state rights and the principles of localized government. State representation is still, after all, a state right—isn’t it?
Gracy Olmstead is associate editor at The American Conservative. Follow her on Twitter.
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