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.