Flotsam and Jetsam

Aral Sea Coastline, Neil Banas, Flickr

In the spirit of keeping things moving here, have some quick thoughts.

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Hot Air had an excellent Quotes of the day feature on the Bundy situation. My personal favorite was this one:

That’s what’s so interesting, not about this racist moron but about the Republicans who supported him until he revealed his views on slavery… 

What if, instead of being a right-wing rancher who flouted the law, Bundy was the leader of a left-wing group of college radicals who occupied a government building? Ronald Reagan notoriously said of Berkeley protestors, “If there is to be a bloodbath, let’s get it over with. No more appeasement!” 

Or what if Bundy had been the leader of the New Black Panther Party? What if he and his followers had, for 20 years, brazenly stolen from the federal government, refused to obey court orders and threatened police with guns? Would Hannity have been duped into defending him? Fat chance. 

Or, umm, what if Bundy had been a Muslim, declaring a tiny caliphate on that dusty piece of Nevada? Does anyone really think Fox News would have made a hero of him then?

This one was a close second, however:

As we've learned once again, there are, quite frequently, people who believe and say reprehensible things — or even take foolish actions — who nevertheless find themselves facing an unjust or excessive government response. Often we find out about the person’s challenges with the government well before we find out anything about that person’s beliefs or character, and in the resulting rush to stand on principle we can inadvertently, prematurely, and often wrongly elevate the person… 

Let’s be clear, one is not giving aid and comfort to the Left when one condemns foolish and reprehensible behavior by those whose cause-of-the-moment you might sympathize with or support. Nor does such criticism render a person a “RINO.” But one does give aid and comfort to the Left when one embraces not just the principle but the deeply-flawed person — especially when that person has revealed themselves to not just suffer from the normal flaws that afflict all of us but from deep character defects that bring shame to their allies. 

And, yes, I know there is a double standard. After all, a man like Al Sharpton has not only made racially reprehensible statements, he has incited deadly violence. Yet he has an MSNBC show and is a friend of the president. A man like Bill Ayers is an admitted domestic terrorist. Yet he is now a respected member of the Left establishment, he helped our president get his political start, and even now he is the toast of Leftists on college campuses around the country. 

But this is the Left’s profound moral failure, not ours.

It's good to see that there's still some thoughtful conservatives out there.

***

Speaking of thoughtful conservatives, here's U.S. Representative Mark Amodei, R-Carson City, being politically savvy:

AMODEI WAS a bit critical of both Reid and Sen. Dean Heller, R-Nev., for adding labels to the controversy surrounding Bundy and the BLM 

Reid called the supporters of Bundy "domestic terrorists." Heller called them "patriots." 

"First of all, I don't think labels help this thing at all," Amodei said. "I sure as heck don't think they are domestic terrorists, with all due respect to the majority leader. 

"Dean may like the word, patriots," Amodei said. "But the labels don't get you where you need to get, which is: what is the culture of your law-enforcement operations in Nevada and elsewhere in the West, since you own so much of it?"

Meanwhile, here he is showing some wit while commenting on Bundy's remarks a few days back:

"All I would say is welcome to the limelight, Mr. Bundy. And now that you're in it, interviews like that come part and parcel with that. Either you are up to the task or you are not. And how you pivot from grazing rights to the plight of African-Americans over the course of U.S. history is, I will just say is quite a leap in terms of subject matter."

Indeed.

***

At Dartmouth, white people are not allowed to use "Fiesta". Caucasian owners of Ford Fiestas are reportedly despondent.

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Yes, I'm late to the show, but I finally installed Papers, Please. The first time I played it, I killed off my entire family within a week. Doing better this time around - I'm not going to lie, I never thought stamping passports for a totalitarian regime could be so enjoyable. Trust me, the game's better than it sounds.

Oh, and it runs in Linux, for those that care about such things.

***

At a party I went to a few months back, an older gentleman clearly trying a little too hard to be cool was telling me about how his doctor told him to peel the skin of off his sausages before he ate them to address a variety of age-related digestive issues he was experiencing. I thought about that while eating a couple of bockwurst for lunch. Old guy at the party, I eat these bockwurst in your honor - skin and all. 

The right way, the wrong way, and the Murray Rothbard way

Murray Rothbard, Wikimedia Commons

Let's get a few things out of the way: Murray Rothbard was a very influential thinker in Libertarian politics at a pivotal moment in the movement. The article that I'm about to tear apart was written over 40 years ago - a lot of things that are plainly obvious in retrospect may have been less obvious back then. There's nothing in said article that diminishes the work he did in economics and political philosophy, nor should it diminish the historical impact that Rothbard's contributions ultimately made to political thought. Even so, incredibly intelligent people can be incredibly wrong sometimes - nobody knows everything about everything, after all - and, in this particular instance, Murray Rothbard was either Max Power wrong or not even wrong.

With that out of the way, let's talk about The Soviet Bogeyman.

Let me be clear about something before we really delve into this - it's not only possible to defend libertarianism without being reflexively anti-American, it's actually a really good idea. The United States hasn't been perfect by any stretch of the imagination, and it will never be perfect by any stretch of the imagination, but we remain the first country on Earth founded and sustained by an ideology. We weren't created to support a common race or nationality like most of Europe. We weren't created to support a common religion. Instead, we were created to support the ideology of "freedom", whatever that might mean at various points in history, and it's an ideology that we do an admittedly imperfect job of living up to. Considering how libertarianism is an ideology founded to support maximal freedom, one that seeks to define the outer extremes of liberty and then make them manifest, it should, with a bit of patience and an ounce of humility, have a very important contribution to make toward defining how the ideology of "freedom" should continue to guide the United States. Considering how instrumental Rothbard was toward defining the outer extremes of liberty, almost singlehandedly creating Anarcho-Capitalism in the process, one would think Rothbard would appreciate that and use that dynamic to his advantage.

Instead, we have a letter to John Hospers, the first Libertarian Party Presidential candidate, that excoriates him for failing to properly defend the Soviet Union. One sentence that immediately stands out:

Between Conservatism and Libertarianism there are numerous and grave inner contradictions, and the attempt to mix the two will lead inevitably to grave problems and anomalies, as we have all recently seen, for example, in Ayn Rand’s attack upon amnesty for draft evaders.

I actually agree with Rothbard on this. It's a shame he changed his mind in later years.

Indeed, what in the world the Russian Question has to do with whether or not the FBI should prosecute the drug traffic, or wiretap, or whether the police should remind accused persons of their constitutional rights, passeth understanding.

Another excellent point!

Are we going to be like the typical Conservative, who drags in the Russian Threat like King Charles’ Head to justify any and all acts of government tyranny? Once we go that route, once we begin to justify a loss of liberty now in order to “defend” that liberty later, we are not only abandoning liberty itself: we are justifying every act of statism, from the draft to oil proration laws. Indeed, every such act has been justified by conservatives in the name of the Russian Threat and of national defense.” And in these justifications, we can see how the State has for centuries used the “foreign threat” to aggrandize its power over its deluded subjects.

Fantastic! Right about here would be a fantastic point to launch into a perfectly justified and well thought out defense of freedom, how embracing it would protect us far better than an overbearing state ever could, how a way of life that embraced freedom would ultimately undermine the inner contradictions of the Soviet Union and lead to its inevitable demise. It would have been a seminal essay, one for the ages, defining liberty as a shining citadel upon the hill, and so on.

That's not where Rothbard went. Before we get into that, though, let's continue on just a little farther:

But the major point is the usual libertarian case for decentralization: that when we confront despotism by the FBI we have no place to go short of leaving the country; whereas to avoid despotism or brutality by, say, the West Waukegan police force all we have to do is to skip to East Waukegan: surely a far more comfortable choice.

Remember that sentence. We'll be coming back to it. Let's set the tone, shall we?

I will have to be a bit high-handed and say flatly that it is my considered view that there is not a single shred of evidence of any Russian aim or plan to launch a military attack upon the United States, either in the past, present, or future.

A bold claim. There were more than a few ICBMs that might disagree, along with the numerically larger military of the Warsaw Pact of the time, but, considering how many direct invasions of the United States were attempted by the Soviet Union, it might have been true.

Since the time of Lenin and his magnificent (from a libertarian, pro-peace point of view) conclusion of the “appeasement” Treaty of Brest-Litovsk in 1918, the Soviet Union, vis-à-vis the other Great Powers, has consistently pursued a policy of what they have long termed “peaceful coexistence,” in fact often bending over backwards to pursue a peaceful foreign policy almost to the point of national suicide.

There is so much wrong with this, it defies imagination.

Let's start with the Treaty of Brest-Litovsk. From a libertarian point of view, it was a travesty - yes, it stopped the fighting on the Eastern Front, but only by effectively mandating Central Powers occupation over large swaths of Imperial Russia and the forced transfer of scarce industrial output and foodstuffs to the Central Power armies so they could more effectively campaign on the Western Front. In fact, the conclusion of the treaty enabled Germany to free enough resources to start the Spring Offensive. If Russia held on for a bit longer - not, frankly, that it was really capable of doing so - American troops might have turned the tide even sooner, moving Armistice Day forward a few months.

As for the Soviet policy of "peaceful coexistence", that's a curious way of describing the Soviet Union's early attempts to export revolution in Hungary and Germany, to say nothing of later Soviet misadventures in Spain, nor the establishment and forceful enforcement of the Warsaw Pact. It also rather conveniently ignores the Russian conquest of Armenia, Georgia, and Azerbaijan. More on that in a bit.

Lenin’s adherence to that policy was only confirmed by the “socialism in one country” doctrine of Stalin and his successors.

Stalin's execution of his "socialism in one country" doctrine was notable for successfully exporting Soviet "socialism" to more countries than any other leader in Soviet history.

We all too often forget several crucial facts of modern European history: and one is that, from the point of view of ordinary international relations, Russia (any Russia, not just Soviet Russia) was a grievous loser from the settlements imposed by World War I (Brest-Litovisk, Versailles).

Quite true. As libertarians, we should mourn this... why?

Any German, Russian, or Austrian regime would have been “revisionist” after the war, i.e., would have sought the restoration of the huge chunk of territory torn from them by the victorious powers. Old Czarist Russia was shorn of Finland, Estonia, Latvia, Lithuania, Western Byelorussia (grabbed by Poland after its war of aggression against Soviet Russia in 1920-21), and Western Ukraine (lopped off by Czechoslovakia and Rumania). Any Russian government would have hankered for its lost and grabbed territories.

This would be the part where a good Anarcho-Capitalist would be briefly sympathetic to the plight of the governments involved, then swiftly remember that, if the goal is the elimination of all governments, it's imperative that governments get as small and localized as possible, so shrinking what still remains the largest jurisdiction controlled by a single government would be a "good thing".

And yet, the Soviets did very little about this hankering; certainly they made no move whatsoever to make war to get the territories back.

Except, again, the aforementioned invasion of the Transcaucus region, along with the conquest of Ukraine and Belarus during the Russian Civil War. This also conveniently ignores the Soviet westward offensive of 1918-1919, which precipitated the Polish "war of aggression" in 1920-21. Considering the results of these efforts (let's just say that, if the Soviets were successful in 1919, it would have been a German "war of aggression", not a Polish one), it's no surprise the Soviets didn't try again until the late 1930s. It probably took at least that long to repair most of the damage from the solid decade of total war Russia experienced between the start of World War 1 and the end of the Russian Civil War.

The Hitler-Stalin pact, much reviled by the uncomprehending Western press, actually made excellent sense for both major “revisionist” post-Versailles powers, Germany and Russia. For the essence of that pact was the commonality of revisionist interests by both powers: from that pact, Germany got its lost territories back (plus an extra chunk of ethnically Polish Poland), and Russia peacefully re-acquired its old territories, with the exception of Finland.

Finland wasn't an "exception" due to some oversight in the Molotov-Ribbentrop Pact - it was an exception because the Finns embarrassed Soviet troops during the Winter War. Furthermore, it ignored the will of the Polish people and, adding insult to injury, yet again empowered Germany to pursue its expansionist aims in Western Europe. Unless Rothbard seriously thinks that Germany was exercising a legitimate "revisionist" claim to the Carolingian Empire.

The next crucial and unfortunately forgotten fact is this: that Hitler turned brutally upon his ally and savagely attacked Soviet Russia on June 22, 1941. In this attack, Hitler was joined by the fascist regimes of Rumania and Hungary (Polish Poland and Czechoslavakia had by this time disappeared, or been swallowed up by Germany.)

Romania installed a fascist regime after the Soviets invaded Romanian territory, which was allowed under the Molotov-Ribbentrop Pact. Hungary's participation was a bit more opportunistic, though it's not too surprising that the Hungarian people were more pro-German than pro-Soviet given the Soviet Union's previously mentioned interference in Hungarian affairs in the 1920s.

In his hysteria, Hitler too, like our conservatives, thought he saw an imminent Russian Threat: and so he decided on what is now called a “preemptive strike.” But of course Hitler, like our American Conservatives, was deluded; for the events of the war revealed that Stalin’s unwise trust in his ally led him to neglect elementary preparedness and thereby almost lost him the war as a result. Stalin’s pacific policy was carried almost to the point of national suicide.

Let's pause the dissection for a minute and consider the broader point that Rothbard was trying to make, in a clumsy and frustratingly contrarian sort of way. It's true that American Conservatives viewed the Soviet Union as an existential threat, and it's absolutely true that more than a few of them wanted the Soviet Union stopped "at all costs". A good essay could have been written about how it's important to differentiate between the American Conservative borderline-Millenialist viewpoint and a more constructive approach to the Soviet Union that focused on trade and increased integration with the rest of the world. A good essay could have been written about how it's important to understand that, even if the Soviet Union truly is an existential threat, that doesn't justify the proliferation of various government alphabet soup agencies bent on poorly recreating the Soviet system in a misguided attempt at defending ourselves against it. A good essay could have been written about how it's more important than ever to stay true to our ideology and our ideals and how the FBI's and CIA's excesses of the time were egregious violations of the core principles upon which the United States was founded. Instead, though, Rothbard wrote a poorly researched paper based on historical half-truths to call out the first person brave enough to run for President as a Libertarian because that person failed to compare American Conservatives to Hitler.

Look, I can continue to dissect this essay all day long...

What of Stalin’s “expansion” into Eastern Europe? This expansion was scarcely aggression in any rational sense: it was purely the inevitable consequence of Russia’s rolling back and defeating the German aggressor and his Hungarian and Rumanian allies.

Which, of course, is why Lithuania, Latvia and Estonia ceased to exist as independent countries; it's why there were Russian troops in Poland, Czechoslovakia, and Bulgaria; it's why Marshal Tito in Yugoslavia received death threats and ultimately denounced the Soviet Union.

Of course, all of these half-truths are meant to make the potentially interesting point that the Soviet Union was not, in fact, an existential threat to the United States and had no serious designs of conquest against it. That may or may not have been true, at least in retrospect. That said, if, as Rothbard correctly pointed out, the Soviets identified "the threat of American aggression, a threat which [the Soviets] have felt deeply ever since we intervened with troops and weapons to try to crush the Bolshevik Revolution in 1918-20," would it not stand to reason that the Soviets might have desired a similarly "inevitable consequence of Russia's rolling back and defeating the American aggressor and its allies" as they apparently were rational in prosecuting against Germany and every other country in Eastern Europe between Moscow and Berlin? Furthermore, why would it be "rational" for a state to conquer anyone under any circumstance? Isn't the entire point of Anarcho-Capitalism that states are inherently irrational and coercive, and so their existence must be minimized or, better yet, abolished? How does enabling one large state's conquest of neighboring states - an act that flies in the face of the usual libertarian case for decentralization - support that goal? If anything, the one thing libertarians and anarcho-capitalists should universally agree on is that, when states enlarge their jurisdictions at the literal point of a gun and enforce that enlargement against repeated uprisings by their new slaves, we should support the people against the state. That really shouldn't be a complicated concept to grasp.

There's a right way and a wrong way to defend libertarian foreign policy. The right way is by acknowledging and calling out the actions of states whenever they violate the rights of the people governed by them, regardless of where on a globe they might be found. The wrong way is by openly apologizing for statist conquerors, regardless of where on a globe they may be found.

Rothbard, at least in this one particular instance, chose wrongly. Please, if you're reading this, don't repeat his mistake.

Using PC-BSD - First Thoughts

PC-BSD logo, Copyright iXsystems, Inc.

A couple weeks back, I decided it would be a good idea to dual-boot my work desktop with some sort of non-Windows operating system so that I had an additional tool for debugging, virus scans, and so on. At the very least, I wanted to be able to scan removable media or USB-attached desktop hard drives for viruses without potentially infecting my Windows system since it has various administrative tools for managing Active Directory installed. I also wanted to use the opportunity to get out of my comfort zone - I knew Windows and I knew Ubuntu, so those were out. Initially, I dual-booted with openSUSE, which wasn't bad - I had some experience with openSUSE in the past on a web server I used to manage and I found YaST's discoverability especially useful since I'm not the strongest Linux sysadmin in the world. However, I found that, while YaST makes an excellent tool for managing servers, it wasn't quite as user friendly as I preferred; perhaps I was a little too spoiled from Ubuntu's desktop package management system. 

That's when it hit me - I was aware of another KDE-centered system that used a more Ubuntu-style package management system and it would expand my horizons a bit: PC-BSD. Last Friday, I downloaded the ISO, wiped out my openSUSE partition, and got to work. So far, I've been using it for a couple of work days, and I've come up with a few quick impressions.

First, I love PBIs. Unlike YaST, which reminds me a bit too much of using Synaptic for manual package management, it's much easier to use PC-BSD's AppCafe to grab a PBI and know that I'm getting all of the libraries, binaries, and so forth that I need to have a running application. This makes AppCafe very similar, conceptually, to Ubuntu's Software Center, or even downloading software for Windows. There's also access to FreeBSD ports, though I haven't played with them yet.

KDE on PC-BSD is pretty straightforward - frankly, I found PC-BSD's default settings easier to work with than openSUSE for some reason, though I can't really put my finger on it. That said, there are a few catches - Dolphin can't mount NTFS volumes on its own because it's hard-coded to use Linux mount options; instead, I had to use the mount tray. This wasn't all bad; instead of mounting my Windows partition in /var/run/media/somerandomstringofnumbers, it instead mounted my drive in /media/drivename. This also corresponds nicely with where the file manager in Ubuntu's Unity mounts partitions by default. That said, this behavior wasn't particularly intuitive.

Another sign that I wasn't in Kansas anymore was when I went to nslookup a web address and got this as a result:

nslookup: Command not found.

Eh? I faintly remember dealing with this on Mac OS X, which is sort of BSD-based, where I would receive the "nslookup on unix-like systems is deprecated; use dig instead." message, so I tried dig and got the exact same result. Turns out FreeBSD 10.0 has deprecated dig, replacing it with host and drill. Okay.

Based on my experience thus far, am I inclined to ditch Ubuntu on my personal laptop and replace it with PC-BSD? Not yet, but it also hasn't frustrated me to the point where I feel compelled to wipe it off my work PC, either. All in all, I'm reasonably happy with it so far - I haven't had this much fun learning a new operating system in years.

Summary and Reactions to Cattlemen and Libertarians

Lamoille Canyon, Elko County, Nevada

If you haven't read the Cattlemen and Libertarians series, start here:

• Cattlemen and Libertarians
• Cattlemen and Libertarians - Part 2
• Cattlemen and Libertarians - Part 3

This will be the last post in this series unless something changes dramatically with Cliven Bundy and his ranch.

When I first started on this series, I did so out of skepticism. Several of my friends and acquaintances in Clark County told me they were heading to this big protest outside of Mesquite because a cattle rancher was exercising his property rights and the government was taking his land away. Once I started to dig into the surface, I realized there was a bit more to it than that. My first instinct once I dug into the issue a little was that the rancher was wrong - he was renting land from the BLM, the BLM decided they wanted to use the land for something different, they went to court, he lost. It seemed at first glance that this was a case of a welfare rancher that felt entitled to public resources, and he was throwing a temper tantrum because the government was finally cutting his subsidy. 

I told my friends in Clark County as much. I also still think there's some truth to this. It doesn't come close to telling the full story, though.

My friends, not surprisingly, told me I was wrong and that I needed to look deeper into the issues, and so I did. The "Cattlemen and Libertarians" series was, in effect, a running journal of my discoveries while researching the history of public land ownership near Bunkerville. When I first started, I thought I would write a blog entry, dig a little deeper than the news was willing to, then call it a night. It didn't take long before I realized there was enough material to potentially write a graduate thesis, if I was so inclined (I'm not). If someone is aware of an academic paper tracing how colonial Spanish and Mexican land law affected public land policy and economic growth in the United States, please tell me about it. If there isn't such a paper floating around somewhere, find a History grad student somewhere and tell them to get to work. I guarantee them it'll be infinitely more interesting and compelling than a lot of historical work done these days. I'll even buy a copy of the journal containing the paper if it's not ridiculously expensive. Heck, if nobody steps up in the next couple of months, I might take a crack at it myself.

Researching these articles was that fun.

Since I know there's a lot of material in the blog articles and since I know time online is often short, here's a tl;dr version of the history behind Cliven Bundy's protest:

Mr. Bundy's protest is in the tradition of the Sagebrush Rebellion, which also produced protests in Jarbidge and an amendment to the Nevada Constitution since they first flared up in the 1970s. This flareup is due to the enactment of the Federal Land Policy and Management Act in 1976, which required the Bureau of Land Management to radically alter how it managed public lands and focus less on economic growth and more on environmental stewardship. This was a pretty serious change of focus since the federal government owns 86% of Nevada.

The federal government owns 86% of Nevada for a number of reasons. First, the federal government, by default, was the initial owner on all lands in unclaimed territory starting with the Land Ordinance of 1785 and the Northwest Ordinance, both of which predate the ratification of the US Constitution; this was done initially to amicably settle overlapping claims by the original thirteen colonies. This precedent remained true after the Treaty of Guadalupe Hidalgo, after which the federal government claimed all lands not previously titled by the Mexican government to private individuals. Second, the federal government had a longstanding policy of supporting yeoman farmers and agriculture, a policy stemming from demographic reality and the utopian ideals of certain Founding Fathers; Nevada's climate in general, and Southern Nevada's climate in particular, does not support crop agriculture except in small, narrow bands around certain streams and rivers. Consequently, most of the land was never homesteaded while the Homestead Acts and the Desert Lands Act were in full swing. Finally, mineral extraction under the Mexican system, which was inherited from the colonial Spanish Ordenanzas de Mineria and relied on leasing public mineral rights over purchasing or assigning private mineral rights, was significantly more convenient for miners and government alike, at least as long as the various layers of government regulating public lands were amenable to working with miners, so mining interests were rarely offered the opportunity to purchase public land.

The reason Nevada doesn't own the public lands in this state is because the federal government never ceded ownership in unclaimed public lands upon statehood to any new state. Though Pollard's Lessee vs. Hagan created the Equal Footing Doctrine, which declares that all states should start on the same footing, without any conditions assigned to statehood that were not applied to the original thirteen colonies, it also openly acknowledged the federal government's ownership of public lands in Alabama while simultaneously stressing that, Constitutionally speaking, the federal government has ownership of the land while the state the land is contained in has jurisdiction of the land. This means, for example, that, should the federal government legalize marijuana, Utah can still enforce a statewide prohibition on marijuana within federal lands in Utah because Utah's jurisdiction is supreme. That said, the federal government did grant the State of Nevada some land; however, Nevada was not a particularly conscientious steward and has long since frittered it away. It's true that Nevada was granted less land than other desert states, but there were a couple of reasons for that - first, Nevada traded its full allotment of four million unsurveyed acres for two million acres that had been previously surveyed, and secondly, it achieved statehood nearly fifty years before its neighbors so its treatment was consistent with the treatment received by the older, wetter states to the east that had previously achieved statehood. If anything, Nevada's treatment upon statehood was a little too consistent with prior states, which led to changes in federal policy when the other desert states achieved statehood.

Finally, I pointed out that, due to the lack of water in this state, a lot of Nevada is economically worthless unless you just want to have a bunch of empty land to stare at from your castle - which, realistically, you're probably getting that without paying property taxes or BLM fees these days - or unless you're pulling minerals out of the ground, in which case it'll be near-worthless once you're done.

So there you have it.

Now I want to take a moment and reflect on the reactions to this series. Reactions are in bold - leaving names out of them unless someone says they'd like their name attached:

If the land were privatized, there would be no confusion.

True, more or less, though private landlords disagree with renters all the time about various things and vice-versa. Though I agree that we should definitely push for this, we also have to acknowledge that a lot of Nevada really isn't worth owning, except as perhaps vanity parcels ("I own land! Go me!"). As long as that's true, unclaimed land has to be "owned" by someone, if only to establish who is responsible if something happens on the property and to establish under what mechanisms remaining unclaimed land can be rightfully claimed (flag planting, homesteading, etc.), and how much of it may be claimed at a time.

Your article seems to assume that the government's "ownership" of that land is legitimate. How can the government have property rights?

Answering the second question first, the government has property rights because the government says it has property rights. Since it's responsible in our current system for establishing land patents, which are the foundation of common law titles, it gets to do this pretty much by default.

Regarding the "legitimacy" of government land ownership, there are people far more thoughtful and better versed than I am that will happily discuss that at length. Personally, speaking as an IT Manager, I'm well versed on the difference between the World of Is and the World of Should Be. In the World of Should Be, the government perhaps shouldn't even exist, and if it must, it shouldn't actually own any land because government land ownership is a conflict of interest - the entity responsible for managing land titles should not, in turn, have land titles of its own to manage. Also, in the World of Should Be, the Native Americans shouldn't have lost their aboriginal title to their lands to European colonists without being properly compensated for them. However, in the World of Is, governments have been owning land in the New World since European explorers first discovered the New World, and, if I knew anything about Aztec or Inca land title practices, I'd probably find their governments owned land, too. 

Bundy's land is getting seized for fracking, isn't it?

No. Fracking requires water, and every drop of water in Southern Nevada is claimed by the Southern Nevada Water Authority, one of the most politically powerful organizations in Nevada. If SNWA can claim water from White Pine County*, which is over 200 miles from Las Vegas, a few hundred thousand acre-feet of water near Bunkerville doesn't have a chance.

Bundy's land is getting seized to build solar panels, isn't it?
The Dry Lake Solar Energy Zone is roughly located in a triangle around where Interstate 15 and US 93 meet. This is roughly sixty miles west of Bunkerville and the contested lands in Gold Butte.

It's public land, so, since everyone has a claim to it, that means everybody can do anything on it!
That's not too far off from the attitude most people had regarding public land, at least until fairly recently. Even as far back as 1934, though, it was clear that the tragedy of the commons was becoming a very serious issue on public lands and something needed to be done. The solution chosen was to manage competing interests in public lands against each other in a way that would ensure those same choices could, theoretically, be made again the following year. Since then, another interest expressed against public lands by the public has been environmental protection - this has introduced additional "claims" by "part owners" of the land that must be balanced against the rest. The trouble with that is Nevada's population is just shy of 3,000,000; conversely, the United States has over 300,000,000. Consequently, with increased attention toward the state of Nevada's lands from people far, far, far from Nevada, it's only natural in a majoritarian system that Nevadans are losing their voice regarding the proper role of public lands.

Long story short, land and its containing resources are scarce, even in Nevada, and it's physically impossible for everyone to do everything that everybody wants to do with each piece of land in Nevada. So, compromises are being made. Of course, better, more productive, more peaceful compromises would probably be made if we privatized the public lands.

Is Cliven Bundy right? Are the protesters doing good work?
Cliven Bundy's protest is the best opportunity libertarians have had in years to discuss public land policy. That doesn't mean it's a perfect opportunity - they don't exist. That doesn't mean libertarians are making the wisest use of this opportunity possible - that's impossible anyway. However, speaking personally, if Cliven Bundy hadn't taken his stand, I wouldn't have taken the time to research the contents of these articles and learn something about the history of public lands and how they're managed. I'm also certain I'm not the only one. So, I'd call his protest an unqualified "net good".

Why won't judges overturn this crap**?
Judges are like Dungeon Masters - they're amenable to reason but they won't let you break the game, no matter how good of a rules lawyer you are. No matter how good of a case you make, no matter how good of a lawyer you have, no matter how strong your grasp of the Constitution is, no judge will ever wipe out federal ownership of millions upon millions of acres of public land with the stroke of a pen. The reason for that is judges are people, they like their jobs, and Congress or superior judges would overturn the judgment anyway.

To get a better feel for this dynamic in action, check out Megan McArdle's retrospective on the Bush vs. Gore court case here, here, and here.

With that, thank you all for sticking around and check back often - there are plenty more posts where the past few came from, and next time, they won't be about old cattlemen in the desert.

* This claim has, thus far, been successfully contested by opponents of the water grab in Ely and Utah. Stay tuned.

** "This crap" being the set of political or economic activities that a particular individual doesn't like.

Cattlemen and Libertarians - Part 3

Black Rock Lava Flow, White Pine County, Nevada

If you haven't read the previous two installments in this series, now's a good time:

• Cattlemen and Libertarians
• Cattlemen and Libertarians - Part 2

In the previous two posts, I spent some time exploring the history of Nevada land ownership while using Cliven Bundy's case - now sort of settled, with the BLM "concluding the cattle gather", at least for the moment. One question that came to mind after exploring the Homestead Acts and the relatively permissive land claim regime in place until the 20th century was why, exactly, did nobody bother to claim most of Nevada's land? After all, mining activity was a constant through most of Nevada's history, and ranching clearly used the public land, so why didn't more people fence some off and keep it for themselves?

The short answer: Water.

The long answer, well...

The aforementioned Homestead Acts all had one goal in mind - spur American settlers to farm the west. Thomas Jefferson was famously pro-agriculture, and many other Founding Fathers shared his sentiment. To drive home the point of how serious they were about their advocacy, here's Benjamin Franklin on agriculture:

“There seem to be but three ways for a nation to acquire wealth. The first is by war, as the Romans did, in plundering their conquered neighbors. This is robbery. The second by commerce, which is generally cheating. The third by agriculture, the only honest way, wherein man receives a real increase of the seed thrown into the ground, in a kind of continual miracle, wrought by the hand of God in his favor, as a reward for his innocent life and his virtuous industry.” 

(Positions to be Examined, Concerning National Wealth, 1769)

Note that "commercial activity" - the simple act of selling goods and services to another individual - was frowned upon, a radical departure from modern sensibilities. At the time, this was a relatively new view of an old idea, one that dates back to Biblical exhortations supporting pastoral animal husbandry over the more settled farm and city life, and it shaped American land policy and politics well into the 20th century. In fact, due to agricultural labor requirements, the vast majority of Americans were farm workers - urban Americans didn't outnumber rural Americans until after World War 1. It wasn't until after the Civil War that urban Americans even accounted for a quarter of the United States' population. There were also political concerns to address, both geopolitical and domestic - widespread settlement and farming established the United States' hold on its existing territories and helped assume control over less-populated neighboring areas. Also, it's hard to go wrong, politically, pandering to addressing the needs of over 75% of your electorate. To that end, most of the 19th century was spent, politically speaking, attempting to serve the needs of current and future farmers of America, at least until the mechanization of agriculture created an economic and political crisis that nicely mirrors our own. Mining, on the other hand, was dirty, mechanical, and communal - even during the California Gold Rush, the idea of a lone miner wandering into a stream to make his fortune was largely apocryphal. Mining, especially using the technology and attitudes of the time, was a messy affair* that polluted indiscriminately downstream, left piles of dirt all over the place, required cooperation with finance to purchase the necessary machinery (a prerequisite that was largely frowned on through most of American history, especially after the Panic of 1819 and the rise of Andrew Jackson), and employed semi-nomadic ruffians that followed the ore instead of doing sensible things like planing roots in a local community, getting married, raising a barn, planting some crops, and supporting several farm-raised children. Consequently, national policy regarding mining was, at least initially, less than friendly, focusing more on preventing mining and its supporters in commerce from somehow siphoning wealth from the productive agricultural class while buoying the wealth of small farmers.

There were two innovations at the policy level that helped agriculture prosper at the expense of mining interests, at least initially. The first was the Land Acts, which allowed individuals to stake claims to large plots of land - at least 80 acres for purchase after the Land Act of 1820, with larger plots available for free upon the passage of the Donation Land Claim Act and the Homstead Acts. The second was the institution of private mineral rights. Because mineral rights in the United States were usually transferred with surface rights, mining companies often had to negotiate with several private land owners to secure the rights to a viable ore veins, complicating initial extraction efforts. Since all it took to disrupt operations was for a single surface owner to refuse to sell their mineral rights, the risk involved in setting up a mine in the United States was non-trivial.

Mexico's attitude regarding mining and private property, however, was very different. While the English settlers that colonized the United States displayed and almost worshipful reverence for agriculture, the Spanish settlers that initially colonized Mexico and the rest of Latin America were at least as interested in gold and other minerals as they were in agriculture and governed accordingly - this even-handedness led to silver being Mexico's primary export from the late 16th century until the 1870's and also led to New Spain having a significantly more industrial and urban character than the United States, at least until the political chaos in post-independence Mexico wiped out those gains. Mining in New Spain and Mexico was governed according to the Ordenanzas de Mineria, which declared that all mineral rights belonged to the sovereign and could be leased to miners in exchange for a cut of the profits. Since Mexico's revenue had fallen precipitously after independence owing to continual political and military strife, the Mexican government maintained a relatively laissez-faire attitude when dealing with prospectors in the country. Consequently, prospectors could simply stake a claim on some public land, register the claim with whatever local government official happened to be around at that moment, and get to work. In return, they provided a percentage of whatever they mined to the local and national government. The result, at least when the government was stable and cooperative, was a relatively quick and painless method for securing the right to extract minerals without dealing with the legal and procedural overhead of actual land ownership**. Better yet, at least from the point of view of the miner, even if a landowner had a claim on a particular piece of property, they lacked mineral rights - consequently, miners could legally tunnel under farms and other private surface property, provided they had permission from the sovereign.

After the Mexican-American War, the United States signed the Treaty of Guadalupe Hidalgo, which required the United States to honor original titles previously granted by Mexico. Though the United States' willingness to honor that clause was every bit as limited as Mexico's ability to enforce it***, the United States did find it in its best interests to preserve the original Mexican mineral rights regime in California, in which gold was discovered right after the signing of the treaty. Since a civilian American-style government hadn't been installed in California yet, miners adapted what legislative rules were present at the time and largely stuck to the practices established in the area by Mexico. This meant working on claims staked on public land, assigned on an informal first-come, first-serve basis, without contesting or attempting to otherwise claim title to the public lands via adverse possession or homesteading. From a practical standpoint, this was the only realistic solution - from 1847 until statehood was achieved in 1850, California was governed variously as a constituent part of Mexico's Alta California territory, to the Californio-led Bear Flag Republic, to a series of military governors that were primarily tasked with settling original Mexican land claims and pacifying the Native American populations. In short, nobody was around to confirm, record or transfer title, so it wouldn't have done the 49ers any good to try. Luckily, the original Spanish and Mexican mineral rights system was well-suited for the near-absence of government at the time****.

Despite the success of the Mexican-style mining regime in California, it took some time and debate before the United States formally accepted the practice. Once it did, though, the United States did so with gusto; with the passage of the General Mining Act of 1872, the United States decisively adopted leasing over parcel sales as the preferred method of managing mineral extraction on public lands. Though there was some movement to switch back to a private property-based approach, the Timber and Stone Act was swiftly abused and ultimately repealed. Once repealed, the window for mining interests to legally purchase public lands came to an end. This actually proved to be a benefit for the mining industry - since the General Mining Act of 1872 fixed mine claim fees without automatically adjusting for inflation, it's actually far cheaper these days for mining companies to pay the per-acre fees to the federal government than it would be to pay property taxes for private property. Furthermore, mines on public lands don't have to worry about finding buyers for non-productive land once the ore has been removed; even without the United States' current environmental laws, few people want to buy a tunnel-laced or pit mine scarred plot.

Even with modern mine reclamation, land in Nevada has one serious issue, at least if you want to do anything economically interesting on it beyond, "Build a house in the middle of nowhere and stare at the scenery" - there's no water. Going back to Cliven Bundy's case, he had roughly 1,000 cattle grazing on 600,000 acres, a density that the BLM viewed as threatening to local wildlife. That means that 600 acres can barely support one cow, which, if you look at land that appears something like this, sounds about right:

"No services next thousand miles", Michael McLeran, Stockvault.net

Part of the problem is that sagebrush is ordinarily toxic to cattle in a similar way that lactose is toxic to humans that lack the LCT gene, only there is no similar gene for cattle. Since sagebrush contains chemicals that are hostile to the bacteria in the guts of cattle, cattle will usually avoid it and will instead feed near-exclusively on the grass surrounding the sagebrush. This causes serious issues, especially in more arid climates like Southern Nevada, since cattle can eat all of the easy-to-digest food in an area, effectively clearing the way for sagebrush to overwhelm an area and prevent future grass growth. There has been some work recently to introduce a form of "sagebrush tolerance" into cattle, but it's still in experimental stages. Consequently, most of Nevada is sorely lacking in food that cattle will actually touch. Adding insult to injury, cattle also require water - not surprisingly, in a state that receives less than eight inches of precipitation annually, and especially in Southern Nevada where precipitation averages half of that, water is in very short supply. Though it's sometimes possible to tap underground aquifers to supplement virtually non-existent surface water supplies, they rarely refresh quickly enough to do much good, and even when they do, they're often stressed to the limit and beyond. Consequently, even if the BLM is wrong about its calculations and it's possible to support, say, two cattle on 600 acres near Bunkerville, that's still not nearly enough to economically support a Desert Lands Act homestead*****.

The big takeaway here is that, frankly, most of Nevada's land isn't capable of generating enough value on its own to pay for property taxes, much less support anything remotely economically interesting, unless there's ore underneath it - and once the ore is exhausted, the value of the land is also exhausted. Consequently, mines really don't want to own property in Nevada and ranchers can only afford land in Nevada if it's heavily subsidized. Given that the BLM's current fee of $1.35/animal/month was too rich for anyone in Bunkerville to pay (Cliven is the last cattle rancher in Clark County), it's pretty safe to conclude that, with or without BLM interference, most of Nevada's land is marginal at best. Even with today's technology, even if the BLM had the same attitude regarding land patents as the original General Land Office, most of Nevada is simply impossible to homestead.

Now, would private ownership of public lands potentially lead to innovative new uses for the land that don't involve agriculture, ranching or mining? Probably, and I think we should absolutely encourage that to happen. However, it's important to note that nobody's beating down the doors to make that happen, and for good reason.

* It's no accident that many Superfund sites in the west are former turn-of-the-century mine sites, like the Carson River and French Gulch. Environmental protections of the day boiled down to, "Is it water soluble?" and, regardless of the answer to that question, "Great! Toss it in the river and let God sort it out". Needless to say, this is a less-than-ideal way of disposing of toxic waste in a region that has no external drainage.

** Interestingly, the tables have turned on these regulatory approaches in the past 200 years. Private mineral rights might complicate mineral extraction efforts when compared to a willing sovereign and a supine surface population, but it also guarantees that some of the mineral profits end up in the hands of landowners, reducing the political threat of NIMBYism, and also reduces corruption by keeping mining fees out of government coffers. There are good arguments that the reason fracking took off faster in the United States than elsewhere is in part due to private mineral rights. Private mineral rights also make it significantly more difficult for populist governments to nationalize ore extraction industries, a common pastime in what used to be "mining friendly" Latin America.

*** It wasn't quite "none at all", but to call the record "mixed" would be giving Congress too much credit. As usual, it was the Native Americans that suffered the most. Note that, contrary to the popular "Columbus and the Spaniards were evil" narrative these days, the Spanish and Mexicans were downright progressive regarding aboriginal title and openly recognized the property rights of Native American tribes like the Pueblo in New Mexico; contrast this to the United States' policy of "Indian removal".

**** This historical example helps demonstrate that strong common law-backed property rights and anarchy, at least as defined as "the absence of publicly enforced state institutions", rarely play nice with each other. Remember that the next time you find yourself arguing with an Anarcho-Capitalist.

***** If you clicked that link, you'll discover that the Desert Lands Act hasn't been repealed and it's still technically possible to make a claim against the BLM for a homestead. Good luck coming up with a site that will meet their criteria, though. Also note that the Desert Lands Act requires cultivation to establish a homestead, not grazing, which requires even more water and effort.

Cattlemen and Libertarians - Part 2

Map of all federally owned land in the United States, Wikipedia

In my previous post, I discussed Cliven Bundy's ongoing struggles with the BLM, along with some context about why, exactly, Cliven's cattle were grazing on federal land in the first place. To quickly summarize, Cliven Bundy's family had been leasing federal range land for over 100 years - land which, for various reasons, was either never available to purchase due to homesteading restrictions or which wasn't viable to purchase due to extremely low lease rates offered by the federal government. Consequently, when the federal government changed the rules governing public land leases in the 1970's, increasing fees and imposing various environmental restrictions, it disrupted Cliven's business, along with other ranching and mining interests in Nevada. This disruption ultimately culminated in the Sagebrush Rebellion, Cliven's refusal to pay range lease fees starting in the 1990's, and the BLM's current attempts to effectively evict Cliven and his property from the BLM's lands. Those attempts, at least at present, are going all sorts of sideways right now due to a combination of fire-breathing bravado on the part of Cliven and his supporters and some heavy handed attempts by the BLM to manage the situation. It doesn't help that some supporters of the BLM are using the opportunity to publicly voice some explicitly anti-rural sentiments, which Ralston Reports highlights here:

One day after Clark County Commissioner Tom Collins referred to some Utahns as "inbred bastards" and warned of violence if they came to support rogue rancher Cliven Bundy, his colleagues were mulling whether it's time for an intervention.

Collins' bellicose comments were first exposed on a website designed to support Bundy. Collins confirmed to me that he made the comments to Piute County Commissioner Darin Bushman, but said he was only concerned about violence.

The tweets were about what you would expect from an extremely frustrated County Commissioner who should know better than to tweet while angry, which means they alternative between being laughably ridiculous and blatantly chauvinistic. All of the emotion and sound and fury surrounding Cliven and his cattle, however, obscures a much bigger issue:

Why does the federal government own 86% of Nevada's land?

The answer to that question can be found in the Nevada Enabling Acts of 1864:

Sec. 4. Authorization to form constitution and state government; limitations. And be it further enacted,
[...]

Third. That the people inhabiting said territory do agree and declare that they 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; and that the lands belonging to citizens of the United States residing without the said state shall never be taxed higher than the land belonging to the residents thereof; and that no taxes shall be imposed by said state on lands or property therein belonging to, or which may hereafter be purchased by, the United States. 

Since Nevada's population upon statehood was less than 50,000 and since most of Nevada's lands were far too dry and marginal to homestead with the 160 acre lots assigned at the time, the vast majority of Nevada's land remained unclaimed and thus in the hands of the federal government, which received title to the land after the Mexican-American War and the signing of the Treaty of Guadalupe Hidalgo.

However, to understand how the federal government ended up with any land, we have to go even further back, to the Northwest Ordinance. The Northwest Ordinance settled competing and often overlapping colonial claims to the frontier* by ceding all lands west of the Appalachians and north of the Ohio River to the federal government. This set the stage for the Land Ordinance of 1785, which marked the federal government's first efforts toward establishing a method of homesteading and organizing the new territories into states**. This precedent was further supported following the Louisiana Purchase, after which the federal government found itself in ownership of over 828,000 square miles of additional territory, minus whatever was already claimed by the existing inhabitants***.

With the precedent of federal ownership of unclaimed land set, it was then time to further refine how the land was to be disposed. The Land Act of 1804 loosened credit and minimum plot size requirements, which sparked strong enough land sales to, at one point, help completely pay off the federal debt. The Preemption Act of 1841 took things a step further and declared that settlers could show up and immediately lay claim to homesteads by simply squatting on the land - all they had to do was build some improvements and pay a nominal fee within a year.

To the states, meanwhile, the original Land Ordinance of 1785 also set aside portions of land for the purpose of building schools, government buildings, roads, and so forth. Additionally, Pollard's Lessee v. Hagan established the oft-cited Equal Footing Doctrine:

The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively, and the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States. (emphasis added)

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. (Emphasis added)

There are a number of key points established by Pollard v. Hagan:

• All lands within a state boundary are subject to the sovereignty and jurisdiction of the state.
• Any navigable waters, and the soils under them, are explicitly reserved to the state.
• Federal land claims are valid regardless of state or local claims to the contrary.

In short, once a territory becomes a state, all existing federal land claims remain in force regardless of the state's feelings on the subject, but the federal lands are bound within the legal jurisdiction of the state. To give a hypothetical example of what this might mean, if federal law legalized marijuana but Utah state law expressly prohibited it, a person couldn't wander on to federal land and light a joint without potentially running afoul of Utah state law. It also means that the federal government can't exercise eminent domain and seize new federal property within a state once a state has been established; however, since federal land claims must be respected, states can't, in turn, seize federal land via eminent domain in return.

That last part is important - we'll come back to that.

Circling back to Nevada, the Nevada Enabling Acts of 1864 set aside the following lands for state use:

Sec. 7. Grant of public lands for support of common schools. And be it further enacted, That sections numbers sixteen and thirty-six, in every township, and where such sections have been sold or otherwise disposed of by any act of congress, other lands equivalent thereto in legal subdivisions of not less than one quarter-section, and as contiguous as may be, shall be, and are hereby, granted to said state for the support of common schools. 

Sec. 8. Grant of lands to state for erecting public buildings. And be it further enacted, That provided the state of Nevada shall be admitted into the Union, in accordance with the foregoing provisions of this act, that twenty entire sections of the unappropriated public lands within said state, to be selected and located by direction of the legislature thereof, on or before the first day of January, anno Domini eighteen hundred and sixty-eight, shall be, and they are hereby, granted, in legal subdivisions of not less than one hundred and sixty acres, to said state, for the purpose of erecting public buildings at the capital of said state, for legislative and judicial purposes, in such manner as the legislature shall prescribe. 

Sec. 9. Grant of lands to state for erecting state prison. And be it further enacted, That twenty other entire sections of land, as aforesaid, to be selected and located as aforesaid, in legal subdivisions, as aforesaid, shall be, and they are hereby, granted to said state for the purpose of erecting a suitable building for a penitentiary or state prison in the manner aforesaid.

The bulk of the land apportioned to the state of Nevada came from Section 7 - unfortunately, as detailed in an excellent article by the Reno News & Review, Nevada wasn't a particularly fastidious steward:

The way the system worked when Nevada entered the union was that a state received parcels 16 and 36 in every township as school trust lands. A township is six miles by six miles and contains 36 sections. In Nevada, according to Columbia University education scholar Fletcher Harper Swift, that worked out to 3,992,000 acres. (Arizona, New Mexico and Utah, because of their arid climates, received four sections each. It is not known why Nevada was not included in this group.****) These lands, when used to generate revenue for schools, were tax free—that is, federal fees and royalties were not collected on the lands. 

[...] 

The first thing that reduced Nevada’s share of trust lands, other than straight sales that were small in number, was dissatisfaction by state leaders with the designated lands. The state sought to exchange them for better lands, though they were not actually well informed on what the existing lands were because so little of the state had yet been surveyed. In other words, they didn’t know everything they were giving away. And Nevada was seeking a remedy for a problem that, from the federal point of view, had already been remedied by doubling the amount of land given to western states. So Nevada officials agreed to accept 2 million acres of federal lands of their choice. If this arrangement was allowed, Nevada—and only Nevada—would be getting a deal no other state was given, and there was objection to it on the floor of Congress. Nevada, after all, was trying to circumvent the planned randomness of the township program that every other state complied with. But by that time Nevada had sold 70,000 acres and realized little if any income from the rest, and Congress approved the exchange. No other state ever got a similar deal.

That deal quickly halved the amount of land granted to Nevada. Of the remaining 2,000,000 acres, less than 3,000 acres remain today after over a century of gross mismanagement and embezzlement:

The problem of shaky management was well enough known that the elected office of Nevada surveyor general was in poor repute, and there were attempts to shut it down. The surveyor general administered state lands. In 1937, Churchill County Assemblymember Claude Smith’s legislation to abolish the office, endorsed by Gov. Richard Kirman, nearly passed. In 1954 Nevada voters approved a measure changing the office of surveyor general from a constitutional to a statutory office, making it easier for the legislature to eliminate the office. 

That should have telegraphed a message to incumbent Surveyor General Louis Ferrari, but another experience that reduced Nevada’s acreage followed—a 1955-1957 scandal when Ferrari was the target of a grand jury investigation into sweetheart sales of land, particularly in the state’s new growth area of Las Vegas, in collaboration with state legislators. The Legislative Commission, with the assistance of Ormsby County District Attorney Cameron Batjer and grand jury foreperson E.H. Hiller, prepared for impeachment (recommended by the jury) of Ferrari by the 1957 Nevada Legislature. In the end the lawmakers stopped short of impeaching Ferrari, settling for finally abolishing his job, which went out of existence on July 1. The legislature then shifted administration of the trust lands to the Nevada Division of State Lands, where it remains today, and management of the income is handled by the state treasurer with accountancy by the state controller. In addition, the lawmakers beefed up the protections involved in the sale of state school trust lands. 

In an attempt to undo the damage caused by decades of corrupt mismanagement while simultaneously riding the political waves created by the Sagebrush Rebellion, Nevada politicians lobbied successfully to amend the State Constitution in 1996, starting with the Senate in 1993 and the Legislature in 1995:

SENATE JOINT RESOLUTION–Proposing to amend the ordinance of the Nevada constitution to repeal the disclaimer of interest of the state in unappropriated public lands.

      WHEREAS, The State of Nevada has a strong moral claim upon the public land retained by the Federal Government within Nevada’s borders; and
      WHEREAS, On October 31, 1864, the Territory of Nevada was admitted to statehood on the condition that it forever disclaim all right and title to unappropriated public land within its boundaries; and
      WHEREAS, Nevada received the least amount of land, 2,572,478 acres, and the smallest percentage of its total area, 3.9 percent, of the land grant states in the Far West admitted after 1864, while states of comparable location and soil, including Arizona, New Mexico and Utah, received approximately 11 percent of their total area in federal land grants; and
      WHEREAS, The State of Texas, when admitted to the Union in 1845, retained ownership of all unappropriated land within its borders; and
      WHEREAS, The federal holdings in the State of Nevada constitute 86.7 percent of the area of the state, and in Esmeralda, Lincoln, Mineral, Nye and White Pine counties the Federal Government controls from 97 to 99 percent of the land; and
      WHEREAS, The federal jurisdiction over the public domain is shared among several federal agencies or departments which causes problems concerning the proper management of the land and disrupts the normal relationship between a state, its residents and its property; and
      WHEREAS, The intent of the framers of the Constitution of the United States was to guarantee to each of the states sovereignty over all matters within its boundaries except for those powers specifically granted to the United States as agent of the states; and
      WHEREAS, The exercise of dominion and control of the public lands within the State of Nevada by the United States works a severe, continuous and debilitating hardship upon the people of the State of Nevada; now, therefore, be it
      RESOLVED BY THE SENATE AND ASSEMBLY OF THE STATE OF NEVADA, JOINTLY, That the ordinance of the constitution of the State of Nevada be amended to read as follows:
      In obedience to the requirements of an act of the Congress of the United States, approved March twenty-first, A.D. eighteen hundred and sixty-four, to enable the people of Nevada to form a constitution and state government, this convention, elected and convened in obedience to said enabling act, do ordain as follows, and this ordinance shall be irrevocable, without the consent of the United States and the people of the State of Nevada:
      First.  That there shall be in this state neither slavery nor involuntary servitude, otherwise than in the punishment for crimes, whereof the party shall have been duly convicted.
      Second.  That perfect toleration of religious sentiment shall be secured, and no inhabitant of said state shall ever be molested, in person or property, on account of his or her mode of religious worship.
      Third.  That the people inhabiting said territory do agree and declare, that [they 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; and that] lands belonging to citizens of the United States, residing without the said state, shall never be taxed higher than the land belonging to the residents thereof; and that no taxes shall be imposed by said state on lands or property therein belonging to, or which may hereafter be purchased by, the United States, unless otherwise provided by the Congress of the United States.
And be it further
      RESOLVED, That the Legislature of the State of Nevada hereby urges the Congress of the United States to consent to the amendment of the ordinance of the Nevada constitution to remove the disclaimer concerning the right of the Federal Government to sole and entire disposition of the unappropriated public lands in Nevada; and be it further
      RESOLVED, That, upon approval and ratification of the amendment proposed by this resolution by the people of the State of Nevada, copies of this resolution be prepared and transmitted by the Secretary of the Senate to the Vice President of the United States as presiding officer of the Senate, the Speaker of the House of Representatives and each member of the Nevada Congressional Delegation; and be it further
      RESOLVED, That this resolution becomes effective upon passage and approval, except that, notwithstanding any other provision of law, the proposed amendment to the ordinance of the constitution of the State of Nevada, if approved and ratified by the people of the State of Nevada, does not become effective until the Congress of the United States consents to the amendment or upon a legal determination that such consent is not necessary.

Note that, in the resolution itself, Nevada explicitly requests the consent of Congress, indicating that even Nevada's legislators concede that Congress' permission is required for this measure to take effect. To date, that has not happened. In fact, without Congressional authorization, Nevada would have to apply eminent domain against the federal government in order to claim title to federal lands, which is, to put it plainly, unlikely to succeed. This is especially true since, while Pollard v. Hagan created the "equal footing" doctrine, it also explicitly states that respecting federal claim to unclaimed public lands is binding whether the people wish to be bound by that claim or not. That's not to say Congress has taken no recent action regarding Nevada's public lands - in 1998, the BLM was authorized to sell public land around Las Vegas through the Southern Nevada Public Land Management Act. Though some of the proceeds from the sale go to state and county agencies in Nevada (5% goes to statewide education, while 10% goes to the Southern Nevada Water Authority), none of the land was explicitly transferred to the State of Nevada.

So, getting back to the original question - why does the federal government own 86% of Nevada's land? - the answer is because few bothered to claim it while the federal government was willing to part with it and, adding insult to injury, the State of Nevada gave 2,000,000 acres back after statehood. Given recent federal policy regarding wilderness management and the increasing need to maintain federal leasing revenues at a time of significant budget deficits, don't expect that percentage to move anytime soon.

This, however, raises (hopefully one last) important question:

Why didn't anyone claim Nevada's land after statehood?

Until next time...

* A curious historical remnant of the original colonial claims is Case Western Reserve University, which was established in territory that was once part of the Connecticut Western Reserve.

** Note that both the Land Ordinance of 1785 and the Northwest Ordinance precede the Constitution's ratification in 1790.

*** European inhabitants, that is. Native American property rights were, as usual, consistently ignored.

**** Note that Arizona (1912), New Mexico (1912), and Utah (1896) all became states decades after Nevada. Since Nevada had already liquidated 2/3 of its land allotment by the time these three states formally became states, it's possible that the federal government had learned from Nevada's example that desert lands weren't going to be worth as much as more temperate trust lands, no matter how many irrigation canals were dug, and adjusted accordingly.