There is a perception, widespread among folks of a particularly political bent, that the Federal Government came to own land in the West by taking that land from Western States, presumably through some nefarious means. Recently incarcerated rancher Clive Bundy asserted that the Federal Government could not regulate his use of public range land because “The federal government has seized Nevada's sovereignty ... they have seized Nevada's laws and our public land.” Republican Presidential Candidate Ted Cruz recently ran an ad in Nevada promising that if elected he would “fight, day and night, to return full control of Nevada’s lands to its rightful owners -- its citizens.” (Emphasis added.)
This is deeply silly.
The United States Government came to own land in the West when it purchased (OK, purchased at gunpoint) California, Nevada, Arizona, and Utah, as well as a good chunk of New Mexico, Colorado, and Wyoming from Mexico for 18.25 million dollars through the 1848 Treaty of Peace, Friendship, Limits and Settlement between the United States of America and the Mexican Republic, better known as the Treaty of Guadalupe Hidalgo. (As far as I know, it did not occur to anyone to wonder whether the indigenous people might have something to say about this arrangement). In today's dollars, that works out to something like $511,000,000.
OK, so this may be off track a little, but let’s be clear: The United States Government bought THE ENTIRE SOUTHWESTERN UNITED STATES for about one seventh of what it cost to build One World Trade Center. For what it costs to operate the United States Military for about 8 hours today, The United States bought California’s gold fields and farms, the Grand Canyon, a good chunk of the Rocky Mountains, Yosemite Valley, the San Francisco Bay, Lake Tahoe, the Colorado River, and quite a lot of spectacular desert, mountains, hot springs, trout streams, silver deposits, mule deer, aspen groves, and timber in between.
Through a strange quirk of history, the Mexican Government is not the party that is screaming about this land being taken from them.
At any rate, when Nevada became a state in 1864, the U.S. Government did not transfer all the land in Nevada to the state. To the contrary, the United States Government fairly specifically stated, in the Nevada Statehood Act of March 21, 1864, that as part of becoming a state, Nevada must "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..... " Congress further provided, in the Nevada Statehood Act, that it could continue to dispose of lands within the state’s boundaries as it saw fit, so long as it gave some land to the state to build schools, prisons, and other state buildings. No one seemed to object to this at the time.
A few years after the state was formed, the United States Government began trying to give land in Nevada, and throughout the West, away. Through the 1877 Desert Lands Act, the Federal Government allowed anyone who could irrigate and cultivate the land to claim 640 acres for their very own. In fact, to this day, if one can find a suitable place to farm and successfully irrigate that property, one can make a desert land entry and claim 320 acres.
The Federal Government’s attempt to give away most of the Western United States was not terribly successful in Nevada because there just isn’t enough water in most of the state to successfully irrigate a farm. Consequently, it was difficult to make a qualified desert land entry in all but a few areas in the state. These publicly owned desert lands were, however, perfectly suited to providing forage for cattle and sheep. As the West was settled, ranchers were allowed virtually unrestricted access to public lands range lands to run cattle and sheep.
Over the next few decades, it became pretty clear to everyone involved that unrestricted access was a calamitous range management strategy. Incidents like the Johnson County War in Wyoming are the stuff of Western legend, but the more pernicious problem was destruction of the range due to overgrazing. By 1934, it became clear that if the United States Government did not take some steps to manage the range, there would not be much range left to manage. Consequently, in 1934, the United States Congress passed the Taylor Grazing Act, which set up a system of grazing permits and which ultimately resulted in the creation of the Bureau of Land Management.
In the 1960's and 1970's, federal involvement in managing public lands came to focus not just on resource extraction, whether through grazing, logging, or mining, but also on environmental stewardship. This principal was embodied in the Multiple Use Sustained Yield Act of 1960 (applying to Forest Service Lands) and the Federal Land and Policy Management Act of 1976 (applying to land managed by the BLM). This increased emphasis on the environment at the expense of agriculture prompted a reaction in the west that culminated in the Sagebrush Rebellion.
The legal argument underpinning the Sagebrush Rebellion is that the Federal Government cannot hold title to public lands under the Equal Footing Doctrine. Under this doctrine, any newly admitted state must have the same rights as the original 13 Colonies. As the Federal Government did not own land in those colonies, the argument goes, it can't own land in any other state. This argument has been uniformly rejected by courts. U.S. v. Gardner, 107 F.3d 1314 (1997) (providing a good background summary for the basis of Federal land ownership in Nevada).
The point of all this is to make one thing very clear: there is nothing remotely illegitimate, unconstitutional, or improper about the fact that the Federal government owns and manages a great deal of public land in the West.
I grew up on a ranch in Mason Valley, Nevada. I understand that the BLM can make decisions that, depending on one’s point of view, are pigheaded, bureaucratic, and just plain wrong. Hell, it’s hard to find anyone in the state who doesn’t feel aggrieved by at least one decision by the BLM. I have some sympathy for the difficult position that ranchers -- good people who provide us with delicious beef -- are placed in. I don’t like Clive Bundy’s arguments, I deplore his lack of respect for the rule of law, and I despise the fact that he is willing to put lives in danger on his quixotic crusade. But I don’t really question his sincerity.
The thing is, I also went to law school. And when a smart, Harvard educated lawyer like Ted Cruz looks into the camera and tells you that he wants to “return” control of public land to the people of Nevada, I know very well that he understands that he is making a promise that is historically inaccurate, intellectually dishonest, and practically absurd. Promises like that aren’t just insincere, they are downright cynical.
I hope that you find legally informed take on things that you read about in the news informative and entertaining. If it seems like your brand of vodka, please subscribe to my blog!
This is deeply silly.
The United States Government came to own land in the West when it purchased (OK, purchased at gunpoint) California, Nevada, Arizona, and Utah, as well as a good chunk of New Mexico, Colorado, and Wyoming from Mexico for 18.25 million dollars through the 1848 Treaty of Peace, Friendship, Limits and Settlement between the United States of America and the Mexican Republic, better known as the Treaty of Guadalupe Hidalgo. (As far as I know, it did not occur to anyone to wonder whether the indigenous people might have something to say about this arrangement). In today's dollars, that works out to something like $511,000,000.
OK, so this may be off track a little, but let’s be clear: The United States Government bought THE ENTIRE SOUTHWESTERN UNITED STATES for about one seventh of what it cost to build One World Trade Center. For what it costs to operate the United States Military for about 8 hours today, The United States bought California’s gold fields and farms, the Grand Canyon, a good chunk of the Rocky Mountains, Yosemite Valley, the San Francisco Bay, Lake Tahoe, the Colorado River, and quite a lot of spectacular desert, mountains, hot springs, trout streams, silver deposits, mule deer, aspen groves, and timber in between.
Through a strange quirk of history, the Mexican Government is not the party that is screaming about this land being taken from them.
At any rate, when Nevada became a state in 1864, the U.S. Government did not transfer all the land in Nevada to the state. To the contrary, the United States Government fairly specifically stated, in the Nevada Statehood Act of March 21, 1864, that as part of becoming a state, Nevada must "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..... " Congress further provided, in the Nevada Statehood Act, that it could continue to dispose of lands within the state’s boundaries as it saw fit, so long as it gave some land to the state to build schools, prisons, and other state buildings. No one seemed to object to this at the time.
A few years after the state was formed, the United States Government began trying to give land in Nevada, and throughout the West, away. Through the 1877 Desert Lands Act, the Federal Government allowed anyone who could irrigate and cultivate the land to claim 640 acres for their very own. In fact, to this day, if one can find a suitable place to farm and successfully irrigate that property, one can make a desert land entry and claim 320 acres.
The Federal Government’s attempt to give away most of the Western United States was not terribly successful in Nevada because there just isn’t enough water in most of the state to successfully irrigate a farm. Consequently, it was difficult to make a qualified desert land entry in all but a few areas in the state. These publicly owned desert lands were, however, perfectly suited to providing forage for cattle and sheep. As the West was settled, ranchers were allowed virtually unrestricted access to public lands range lands to run cattle and sheep.
Over the next few decades, it became pretty clear to everyone involved that unrestricted access was a calamitous range management strategy. Incidents like the Johnson County War in Wyoming are the stuff of Western legend, but the more pernicious problem was destruction of the range due to overgrazing. By 1934, it became clear that if the United States Government did not take some steps to manage the range, there would not be much range left to manage. Consequently, in 1934, the United States Congress passed the Taylor Grazing Act, which set up a system of grazing permits and which ultimately resulted in the creation of the Bureau of Land Management.
In the 1960's and 1970's, federal involvement in managing public lands came to focus not just on resource extraction, whether through grazing, logging, or mining, but also on environmental stewardship. This principal was embodied in the Multiple Use Sustained Yield Act of 1960 (applying to Forest Service Lands) and the Federal Land and Policy Management Act of 1976 (applying to land managed by the BLM). This increased emphasis on the environment at the expense of agriculture prompted a reaction in the west that culminated in the Sagebrush Rebellion.
The legal argument underpinning the Sagebrush Rebellion is that the Federal Government cannot hold title to public lands under the Equal Footing Doctrine. Under this doctrine, any newly admitted state must have the same rights as the original 13 Colonies. As the Federal Government did not own land in those colonies, the argument goes, it can't own land in any other state. This argument has been uniformly rejected by courts. U.S. v. Gardner, 107 F.3d 1314 (1997) (providing a good background summary for the basis of Federal land ownership in Nevada).
The point of all this is to make one thing very clear: there is nothing remotely illegitimate, unconstitutional, or improper about the fact that the Federal government owns and manages a great deal of public land in the West.
I grew up on a ranch in Mason Valley, Nevada. I understand that the BLM can make decisions that, depending on one’s point of view, are pigheaded, bureaucratic, and just plain wrong. Hell, it’s hard to find anyone in the state who doesn’t feel aggrieved by at least one decision by the BLM. I have some sympathy for the difficult position that ranchers -- good people who provide us with delicious beef -- are placed in. I don’t like Clive Bundy’s arguments, I deplore his lack of respect for the rule of law, and I despise the fact that he is willing to put lives in danger on his quixotic crusade. But I don’t really question his sincerity.
The thing is, I also went to law school. And when a smart, Harvard educated lawyer like Ted Cruz looks into the camera and tells you that he wants to “return” control of public land to the people of Nevada, I know very well that he understands that he is making a promise that is historically inaccurate, intellectually dishonest, and practically absurd. Promises like that aren’t just insincere, they are downright cynical.
I hope that you find legally informed take on things that you read about in the news informative and entertaining. If it seems like your brand of vodka, please subscribe to my blog!