Originally Published in The Southern Utah Independent 07/09/17
While sitting at a campfire at a friend’s home this last spring, the subject of public lands came up — in particular, the discussion of what the current administration has planned for them. One particularly verbose and self-proclaimed member of the elite “pioneer stock” of Utah seemed a little discontented with the idea that there was even a discussion to be had on the matter.
“We need to take our damn land back.” He said.
This is a more-than-common sentiment on the topic among conservatives and pseudo-scholar constitution lovers. It is espoused as an obvious point of fact and generally accepted to be so with little debate. This is problematic for reasons we’ll discuss, but at the outset here, it is something that very much needs to be understood before taking to the task of preventing states from gaining control of federal lands.
Generalizations duly noted here, it is safe to say that many of the proponents for control of state lands lean towards a fundamentalist conservative worldview. With that in mind, perhaps an analogy of sorts could be drawn from someone they regard highly and authoritative on matters of conscience in an effort to begin a dialogue by first finding some common ground.
C. S. Lewis is perhaps one of the more notable and beloved theologians and advocates of the absoluteness of deity in the eyes of western Christian civilization. He wrote, “Good philosophy must exist, if for no other reason, because bad philosophy needs to be answered.”
By “philosophy,” he presumably meant “theology,” among perhaps other things. But the point is that it was not lost on him that it is imperative to bring to an argument upon matters of consequence, as much of the truth in facts as can be mustered at the time, else the argument itself is pointless. And he presumed in this statement that this precept was a universally transcendent one.
When it comes to the debate over public lands at present, and drawing from the example the boisterous Utah native presents, it should be said that an accurate understanding of history and laws regarding public lands must exist, if for no other reason than because inaccurate and ignorant ones must be answered.
And in this time and place in history, it is as important as ever, because, my friends, that inaccurate and ignorant paradigm may well prevail in a manner not thought possible until now.
Because until now, public lands, national monuments and parks, state trust lands, and environmental regulations and agencies have prevailed largely under the attacks of such ignorance because no matter what salvos of emotional appeal were lobbed at them, the courts were what they ran up against.
Legislators with ties to the extraction industry would rally causes of federal land being ceded to state control with the ardent support of their constituencies but would invariably only gain the loyalty of their supporters for their attempts. It was the courts that would stop them. Espousing without merit that the states are really the constitutional, legal, rightful owners of the U.S. public lands and portraying the ownership of land by the federal government as illegal and unconstitutional, these legislators would spend vast amounts of tax dollars mendaciously pursuing the agenda. And in spite of the failed outcome, which often their own offices of research and legislative councils would advise them of, they would consider it a successful loss. They may not have accomplished the goal, but they satisfied their ill-informed base that they had fought the good fight, often capitalizing on the fact that this very base did not know enough to know that they were being used for a corporate agenda.
It sounds appealing to the average supporter of this agenda that the federal government is out of control and has no right to the land it has taken. To these supporters, the land must be taken back at all costs.
This just simply does not align with facts.
The United States government owns 650 million acres of land. That is about 30 percent of the land area of the country. At one point early in its history, it owned all of the lands west of the original 13 states. Federal land ownership started when the original states ceded their “Western Land claims” in the decade beginning in 1781. Other than these Western lands claims, none of the original public domain was ever owned by states.
These lands cannot be “given back” to the states, because the states never had them in the first place.
U.S. acquisition of federal lands occurred mostly from 1803 to 1867, beginning with the Louisiana Purchase and ending with the purchase of Alaska.
This is covered in the U.S. Constitution by the Property Clause (Article IV, section 3, clause 2), which reads, “The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”
The Antiquities Act of 1906 followed the 1905 and earlier designations of national forests, and the Federal Land Policy and Management Act of 1976 (FLPMA) is likely the most concrete and impenetrable legislation protecting federal lands. FLPMA repealed all land-disposal claims and made it national policy that from then on the general intent was to keep all the public lands. This is where the law regarding public lands sits today.
Likely in response to FLPMA and perhaps an increasing interest by the general public on a national level to regulate grazing and forestry practices on public lands, the Sagebrush Rebellion of 1976 began. Largely lead by ranchers who in some cases rightly felt their lifestyles and livelihoods were being infringed upon, the rebellion was put down in 1984 by the courts.
But its spirit lives on and can be witnessed in recent upsurges such as the standoff in Bunkerville, Nevada by rancher Cliven Bundy, the illegal ATV ride through Recapture Canyon in southeast Utah spearheaded by San Juan County Commissioner Phil Lyman and inflamed by Bundy’s son Ryan, and the illegal takeover of the Malheur Refuge in Oregon by Ryan and Ammon Bundy and accomplices.
In spite of the radical nature of the Bundys’ misaligned defiance, it is understandable on some levels and to varying degrees represents the unrest and dissatisfaction the west has been accumulating with the federal government. American heritage in the west is all but synonymous with the western rancher/cowboy culture as it embodies the rugged individualism of the American ethos.
And it is that ethos and the ill-informed infatuation with it that groups like the American Legislative Exchange Council (ALEC) have aligned with to accomplish corporate interests disguised as the interests of everyday Americans with a stake in public lands.
ALEC is a political vehicle of the Koch Brothers for transforming their ideology and policy preferences into law. Extractive industries, such as mining industries and fossil fuels, as well as real estate developers desire federal lands for development without the environmental regulations, fees, and royalties required by federal land management agencies.
And with the recent election of Donald Trump and a powerful Republican majority, the groundwork is now in place for a real and viable threat to public lands once so ardently protected by legislation enforced by the courts.
Utah Republican Mike Noel presents an example of the not so rhetorical threat to public land. Although he is far from alone in this mindset, his is an ardent and effective approach among conservatives. He works to demonize opposing views, intimidate opponents, and assert incredulous nonsense guised as compassionate conservatism while appearing to have a working agenda consistent with the needs of extractive industries. He refers to people under his charge-the people who live and recreate in Utah that is- who do not agree with him as “bunny lovers, tree huggers, and rock lickers.”
Noel is making a bid to be the head of the Bureau of Land Management, an agency he seems to publicly despise, presumably to either dismantle it or overhaul it to an unrecognizable state.
He perceives advocates for limiting resource extraction to protect Utah’s striking red-rock landscapes, wildlife, rivers, and archaeological resources as enemies to the rural communities of Utah and believes such practices harm the land rather than protect it. He cites no credible sources of information to validate such claims, however, and is an ardent advocate for extractive industries and development.
Noel is an example of what I mean when I say that what was once a mindset held exclusively in small and easily discredited groups, is now gaining the ground it needs to be a viable force and threat to the legislative process that once stopped it in its tracks.
The current atmosphere contains more than veiled threats without teeth to the sanctity of hard-fought-for and won public land policy. It represents a clear and present danger to it because this president and administration are sympathetic to the maligned agendas of the extractive industries and the legislators owned by them. They could very conceivably, and likely with absolute impunity, overturn FLPMA, the Property Clause, and the Antiquities Act for that matter. What was once protected by the courts will no longer be, and the consequences will be grave and real.
That is why it is more important now than it has ever been to become informed and engaged activists and advocates for the land and the environment we all live in. It is not enough to merely vote your conscience, recycle and reuse your waste, and tell the waiter you would like your beverage without a straw.
I was recently approached by a person who asked me what I thought of the whole land debacle and in particular what I thought of the outdoor retailer Patagonia’s proverbial removing of the gloves as it spearheaded a pullout of the Outdoor Retailer Show in Salt Lake City and made know its intent to litigate with the Trump Administration over the attempt to overturn the Bears Ears National Monument designation.
I began by asking him if he really wanted to know what I thought. When he seemed sincere in his intent to know, I inquired whether he knew of the history of our public lands and the legislation mentioned in this article. He acquiesced that he did not. I then asked him how he could, with such conviction, support a mandate for something he did not understand all sides of. He asked me if I recognized the overreach of the federal government. We both saw valid points to one another’s concerns, and a healthy debate ensued. I hope it continues.
This may be one of the most important discussions of our generation, folks. Please inform yourselves and get involved. You are, whether you choose to be our not.
See you out there.
“The sagebrush rebels may have peddled legal theories based on a mendacious myth about the Constitution and federal power. But myths exert great power over the way people understand the world and its conflicts (1).” ~ Fischman & Williamson
What is the lie-laden myth that Utah and many western politicians like Governor Herbert, Senator Lee, Washington County Commission hopeful Victor Iverson, Utah Representative Noel, and pretty much the entire Republican Party are peddling? It is many things but they all fall under the ‘government overreach’ umbrella. The rally cry comes in many forms which includes but is not limited to:
||5. States would use the land differently and better|
||6. The fight to take back federal lands is for the people|
||7. The ‘equal footing doctrine’ means equal economic footing|
||8. Local or state governments have no say or control over land management decisions|
Left to right, top to bottom: Gov. Herbert, Sen. Lee, Victor Iverson, & Rep. Noel
Some argue that the issue of states’ rights and government over-reach is not about fact but about principle (the assumption being that somewhere along the way something unconstitutional happened). That’s possible, but what this statement over-looks, is that laws represent the concrete reality of principles – and the law and supporting facts can be examined.
For example, some claim that if you only look at the legality of the Cliven Bundy case, then yes, he is in the wrong; but, if you look at the principles, then you will see that the federal government is wrong. They state that the federal government “shouldn’t” have passed environmental laws to begin with (this points us back to the underlying assumption). Others assert that Bundy has neither the law nor principle on his side. The question is: Can one be legally wrong but principally right? We all know that laws can be unconstitutional, as can behavior, so how does one determine which is right and which is wrong when the issue is as convoluted at state verses federal power? Thankfully for us, some things can be known.
Since a principle is a primary source or ingredient that forms the basis of something, in this case, what is constitutional, and behavior is limited by law (which upholds constitutional principles), then we have two options to explore: The constitutionality of the law and the constitutionality of the individual, the group, or the state. Since the constitution is used as the ‘source’ or foundation for law in the U.S., let’s start there.
Federal land ownership began when the original 13 states ceded their “western” lands (between the Appalachian Mountains and the Mississippi River) to the central government between 1781 and 1802. Substantial land acquisition in North America via treaties and purchases began with the Louisiana Purchase in 1803 and culminated with the purchase of Alaska in 1867. In total, the federal government acquired 1.8 billion acres in North America.
The U.S. Constitution addresses the relationship of the federal government to lands. Article IV, § 3, Clause 2 — the Property Clause — gives Congress authority over federal property generally, and the Supreme Court has described Congress’s power to legislate under this Clause as “without limitation (2).”
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”
Two court cases, Kleppe v. New Mexico and the Sagebruch Rebellion case waged by Nevada, Nev. ex rel. Nev. State Bd. of Agric. v. United States, were both beaten by the Property Clause of the Constitution. But not only that, the ‘equal footing’ doctrine, which is touted as a reason the states should get public lands back on economic grounds, was explained:
“The equal footing doctrine (based on language within Article IV, § 3, Clause 1), and found in state enabling acts, provides new states with equality to the original states in terms of constitutional rights, but has not been used successfully to force the divestment of federal lands. The policy question of whether to acquire more, or to dispose of any or all, federal lands is left to Congress to decide. The doctrine means that equality of constitutional right and power is the condition of all States of the Union, old and new. It does not mean that physical or economic situations among states must be the same (2).”
As for the U.S. government promising they would give all federal lands back to the states; that was never the case, though it may have been the states’ understanding, or standing interpretation. “The initial federal policy generally was to transfer ownership of many federal lands to private and state ownership. Congress enacted many laws granting lands and authorizing or directing sales or transfers, ultimately disposing of 1.275 billion acres. However, from the earliest times, Congress also provided for reserving lands for federal purposes, and over time has reserved or withdrawn areas for such entities as national parks, national forests, and wildlife refuges (2).
Believe it or not, the first direct authority for federal management of these lands, and implicit shift toward ending disposals and retaining lands in federal ownership, was the Taylor Grazing Act, enacted by Congress at the behest of western ranchers. The end of disposals came a few decades later following two laws that were passed in 1964: the Public Land Law Review Commission (PLLRC) and the Classification and Multiple Use Act, which directed BLM to classify lands for retention or for disposal and to manage the lands for multiple purposes, whose recommendations culminated in the Federal Land Policy and Management Act (FLPMA).
FLPMA was passed in 1976 wherein Congress formally declared,
“It is the policy of the United States that the public lands be retained in Federal ownership, unless as a result of the land use planning procedure provided for in this Act, it is determined that disposal of a particular parcel will serve the national interest.”
FLPMA also, however, required more cooperation between federal and local and state governments in regard to land use decisions. In other words, the local and state governments are allowed in the decision making process. This is the right and legal way for local and state officials to address land use plans. It may not win them any political points, but it is the best avenue available. That being said, Congress and the states exercise concurrent, not mutually exclusive, jurisdiction over the public domain. To the extent that the laws of each conflict, federal law is supreme and preempts inconsistent state law.
Back to the divestiture of land by the Federal Government to the states, it began in 1800 in the state of Ohio which led to the establishment of the General Land Office created in 1812 to administer the disposal of federal lands (which as has been stated in previous posts, led to the creation of the BLM).
Congress enacted numerous laws to grant, sell, or otherwise transfer federal lands into private ownership, including the Homestead Act of 1862 and the General Mining Law of 1872. Grants to railroads in the 1870s gave them incentives to create much of the nation’s transportation system. Nearly 816 million acres of the public domain lands were transferred to private ownership between 1781 and 2006.
The federal government also granted 328 million acres to the states, the largest tract given to Alaska. As can be seen, much of the public domain was given back to the states. One of the biggest land grants came in the form of state trust lands, meant to provide funding for schools via revenues made from land development.
State trust land managers lease and sell these lands to generate revenue for current and future designated beneficiaries. Predominantly found in the western United States, 46 million acres of land are currently designated as trust lands and the proceeds from the lease and sale of these lands are distributed into a state’s permanent fund and used for many purposes. In Utah these lands are managed by the State and Institutional Trust Lands Administration (SITLA). From the SITLA website:
“Starting in 1785, the Founding Fathers created a plan whereby territories were granted land before statehood to support schools. In 1894, shortly before Utah became a state, Congress created a land trust including one-ninth of the land of the state to support our public schools. Today, schools still have 3.3 million acres scattered around the state. If these scattered parcels were combined, it would make a parcel of land about the size of the state of Connecticut. These lands are held by the state as trustee for our public schools, which are the beneficiaries (or those that benefit from the proceeds from the trust). The lands are managed by the School and Institutional Trust Lands Administration (SITLA). All net revenue is saved in the permanent State School Fund, which is now over $1 billion. Since 1995, when SITLA was created by the legislature, net revenue has increased from $15 million to about $80 million annually through prudent and profitable management of the lands (3).”
SITLA is very similar to the BLM except in one way (Use of Trust Lands): it is run like a business. In other words, they manage lands for virtually the same purposes, but charge fair market value. For example, fair market value for grazing is $16-$20 a head of cattle on state land, whereas the federal price is roughly $1.30. Politics are what keep the prices at pre-1930s rates on federal land. If Cliven Bundy really had his way, and the lands he grazed were state land, he would be paying upward of 16 times what the government charges. In Utah, SITLA just recently voted to raise grazing prices.
As one author asked, “Why would the commodity interests—ranchers, loggers, et al.—want to own federal lands that already offered such a bounty of subsidies?” The reality is that ranchers did not really want to own the federal lands. Instead, ranchers and their representatives sought to stifle the effects of the 1970s federal legislation increasing environmental restrictions on and competition for the use of the public lands (7). In other words, they didn’t want to share. They did not want equal rights afforded to other stakeholders with interests in the land.
Furthermore, the state of Utah claims it is unfairly being cheated out of economic benefits due to federal lands, but when Grand Staircase Escalante National Monument was designated, the land exchange greatly benefited the state. In fact, one oil and gas parcel acquired by the state in this exchange provided 60% of all state trust land oil and gas revenue in 2006. Furthermore, the United States essentially wrote Utah’s school kids a $50 million check. (4). While the designation at first appeared to be devastating for the state, it turns out, it has been incredibly profitable.
So profitable in fact, that the governor is skimming the first $1 million off the top annually to go into a legal account to sue the federal government for control of federal lands (5). To be clear, $1 million annually is going into a fund to sue the federal government, from profits gained via land the federal government gave to the state of Utah. All of this despite the legislative council stating it is a frivolous and wasteful endeavor. In other words, the legislature’s and governor’s own legal team has advised them that they have a slim to no chance of winning.
So based on this history, and current state of land management, is the federal government acting unconstitutionally? I think not. The dishonest players are the states and local politicians. They know that if they keep peddling this mendacious myth, they will continue to keep their base and continue to gain political points. It is manipulative and dishonest.
But a `states’ rights, un-cooperative federalism, Sagebrush Rebellion, and anti-environmental’ rhetoric certainly pays dividends at the polls, just ask Senator Mike Lee. Mike Lee represented Kane County in their legal battle over road closures and then ran on getting public lands back, and as a result, beat Senator Bennett. Now his natural resource adviser, Victor Iverson, is using the same tactics running for Washington County Commission. It is such a political lottery ticket that federal overreach was the primary theme at the Utah Republican Convention (6). Clearly there is a political incentive to continue these tactics, but let’s not suggest it benefits the citizens.
While we can certainly question the constitutionality of laws and argue constitutional principles, it should not be aimed solely at the federal government. In light of the facts, it appears that not only do the states’ right activists not have the law, the facts, or the constitution on their side, they do not even have the foundational principles they lay claim to. It is time to turn a critical eye toward state and local politicians who are peddling lies, wasting money, and who amount to little more than used car salesmen pushing a sour deal. Their shenanigans are helping no one but themselves.
This is not to say that states should not keep the federal government in check, because they should. But in doing so, their attempts should be justifiable, feasible, and reasonable. Furthermore, they should publicly note and acknowledge current law and legal standing in an act of good faith and honesty. They owe that not just to their constituencies, but to all citizens of all political persuasions who deserve to know the truth. That way the citizenry can be informed and possibly support the state when it deserves it. As of yet, all of the above mentioned seems to be lacking from the Sagebrush rebels’ battle with the federal government.
In the end, it may be time for the federal government to take a cue from such institutions as Utah’s SITLA and allow the market to set prices on land deals and uses. Allowing the market to work may be more equitable for all parties, and may even put money back into the pockets of tax payers via the discontinued use of subsidies. Who knows, maybe then our public lands will make a profit rather than continue to incur a deficit.
***May 10th a Utah county commissioner in Blanding, Phil Lyman, is going to illegally lead an OHV ride through Recapture Canyon in defiance of government overreach. http://www.sltrib.com/sltrib/politics/57890003-90/blm-canyon-ride-lyman.html.csp ****
- not telling the truth; lying.
“politicians and their mendacious spin doctors”
- Synonyms: lying, untruthful, dishonest, deceitful, false, dissembling, insincere, disingenuous, hypocritical, fraudulent, double-dealing, two-faced, two-timing, duplicitous, fictitious, falsified, fabricated, fallacious, invented.
- Antonym: truthful
(2) Federal Land Ownership: http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL34267_12032007.pdf
(3) School Land Trust: http://www.schoollandtrust.org/school-trust/school-lands/
(4) Governor Herbert got it wrong: http://suwa.typepad.com/blog/2011/03/governor-herbert-got-it-wrong-protecting-wilderness-helps-utah-school-children.html
(5) Land Exchange Distribution Account: http://le.utah.gov/lfa/reports/cobi2014/fundinfo/fund_1335.pdf
(6) Combatting federal overreach primary theme at Utah Republican Convention: http://www.stgeorgeutah.com/news/archive/2014/04/27/mgk-combatting-federal-overreach-primary-theme-utah-republican-convention/#.U2PSkld435c
(7) The Story of Kleppe v. New Mexico: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1454&context=facpub
“Knowledge is a weapon Jon. Arm yourself well before you ride into battle.”
~ George R.R. Martin, A Feast for Crows
If the Cliven Bundy standoff has show us anything, it is that a strain of fringe, anti-federalists not only exist in the county, but are willing to act at the least provocation. The resort to violence by rural people in Nevada is not an anomaly and is not an isolated incident. The unrest, angst, and itch for violence against federal agents and employees is always there under the surface. This county has a long and inglorious history of such factions and groups, and though not limited to the West, they seem to be unduly present not only in rural communities but by leaders and politicians hankering to wrest control of public lands from the Federal Government. There were outcries over the BLM’s show of force in April toward the ranchers and militias, of their preparation for violence, but it will be shown that the BLM had good reason to come prepared. Their good faith effort in 2012 to round up Bundy’s cattle without weapons was called off due to violent threats, which as will be shown, have been real and acted upon in the past.
Anti-federalism groups, or Constitutional vigilantes, have a long and colorful history, beginning with the most notorious faction, the KKK followed up by the Posse Comitatus who put the hit out on the Federal Government (6). These organizations go beyond the mainstream into a fanatical fringe that all have a few things in common. First, they do not have a just or moral cause (though they think they do). Their defiance and acts of violence largely stem from disagreement with the mainstream on specific laws, such as gun restrictions, income taxes, the Federal Reserve, the 14th Amendment, and public lands regulation. Second, they believe that the federal government acts in opposition to the Constitution and believe that they not only are protecting and upholding the values set forth in the Constitution, but that they are the ones who truly understand it. Third, they have a very narrow view of which parts of the Constitution they deem worthy of protection and interpretation, and they largely ignore all case law and precedent set between the time of the writing of the Constitution and the present day. And Forth, they act outside of the law.
It is a dangerous mixture of narcissism, hatred, and ignorance. The most alarming aspect is that while they cloak themselves in the flag and Constitution, they shred the very principles behind them at the same time. We could rightfully dismiss Cliven Bundy as an ego-maniac with a hero complex, but the problem goes further than his cause célèbre when he takes on followers willing to do his bidding through acts and threats of violence. While it is true that the government can act outside of Constitutional principles or can be corrupt, the mainstream fights it within the confines of the law. Sometimes they win and sometimes they lose, but while they are fighting bad law, the way they go about it shows respect for the rule of law in the process. It is the right and patriotic way to keep out-of-control government in check. There is much to complain about in regard to the legal system and how it works, but allowing radical militias, who interpret the Constitution through an arbitrary and selfish lens, is worse.
The first such case of a militia taking up arms against the United States Government was a group of whiskey distillers in Pennsylvania in 1791 in response to a tax on whiskey. Treasury Secretary Hamilton needed to find a steady source of revenue for the fledgling government and so he proposed an excise tax on whiskey produced in the United States. Congress instituted the levy in 1791 (1). The whiskey distillers, like modern day Cliven Bundy and his supporters, didn’t like the tax. In response, the hostile farmers “attacked and destroyed the home of a tax inspector (1).” The hostility grew and threatened to spread to other states. At the time, the government was weak and could not withstand this kind of insubordination if it was to succeed. George Washington was President at the time and Hamilton advised him to send in the military. George Washington did not take his advice and first sent in negotiators, but they failed to resolve the issue with the farmers. When diplomacy failed, President Washington sent in a force of 13,000 militia troops, led by Hamilton and Virginia governor Henry Lee, to put the rebellion down in western Pennsylvania. According to Richard H. Kohn, in his article The Washington Administration’s Decision to Crush the Whiskey Rebellion,
“One of the fundamental questions raised in the debates over the Constitution in 1787 and 1788 was on what foundation the ultimate authority of government rested. When they discussed the problem men who differed over the Constitution as much as James Madison and Richard Henry Lee agreed that government was based either on law or on force and that law was the only firm basis on which to build a healthy republican society. And they also agreed that once the law failed, either through individual disobedience or riot and rebellion, force would be necessary to restore order and compel citizens to fulfill their social obligations (2).”
While the U.S. government is no longer a fledgling one, the similarities between the whiskey farmers in the 1790s and modern day Cliven Bundy and his supporters are striking. The only real difference is the amount of force used by the government to quell the Bunkerville insurrection. But the question about the breakdown of law and the use of force is still relevant. The prospect of force being the final arbiter of justice is truly frightening because it indicates that the rule of law has been breached. This breach of law is the chipping away at the foundation on which this country rests; contrary to the popular and romantic view that it is based on peoples’ willingness to rise up against the government. Furthermore, it puts everyone at risk, including the rebels themselves. The very laws that they are undermining are also protecting them against a real Wild West showdown, not just between them and the government, but by other citizens willing to play by their rules. What is truly shocking, however, is how prevalent this rural defiance is and how it has been allowed, some might even say encouraged, to go unchallenged for so long in the state of Nevada.
There is a certain romanticism attached to the West, and it holds throughout the country, not just in the West. There is some reason for it. When the West was being settled, it really was wild. Justice was largely held in the streets and tough, hardscrabble people had to find a way to survive in what was an unruly part of the country lacking law and order. Against all the odds, tenacious individuals managed to tame the land, endure the lack of law and order, and settle here. Those who came here had to rely on themselves in part because the government was not established enough to do it. But with that self-reliance and individualism came an almost inherited attitude of entitlement to be free from all restraints, regulations, or rules, including from the government. Of course when the government did grow in strength and capability, the rough and tumble settlers of the West viewed it as the new and ever encroaching monster they must now face, and it fit well in their Wild West worldview. In fact, when the Bundy showdown began, the phrase, “It’s about to get western down there,” was touted repeatedly by Bundy supporters. It appeared that these people were excited at the prospect of going toe-to-toe with the government and felt they were following in a glorious tradition started by none other than, the Founding Fathers.
On Independence Day in 2000 a group of roughly 300 people in the small town of Jarbridge Nevada took up shovels and headed to a narrow road on federal land that had been closed by the Forest Service in 1995 after a flood had washed it out. The Forest Service determined that the construction to repair the road would cause more harm than good by endangering the river’s dwindling population of bull trout via erosion. “Long angered by federal restrictions on everything from water access to grazing rights, county officials and anti-federalists across the West seized upon the obscure road as a symbol of their discontent. “We will rebuild the road, come hell or high water,” declared Tony Lesperance, an Elko County commissioner. The demonstrators, met by dozens of law enforcement officers and media cameras, paraded down Main Street, brandishing their shovels and singing The Star Spangled Banner (3).” Due to the media being there, and people excitedly giving interviews, it got a lot of coverage.
“It was a classic fin-de-siècle American protest: a staged telegenic moment steeped in Western symbolism,” according to Mother Jones reporter Florence Williams.
But that’s not the worst of it. According to Williams, Elko County Nevada has earned the reputation as the most lawless county in the West. “In 1995, on the same day a bomb exploded in a Forest Service building across the state in Carson City, a detonated pipe bomb was discovered in an outhouse at a campground near Elko, the county seat (3).” On August 5, 1995 according to the AP, “A bomb exploded under a van at the home of a U.S. Forest Service ranger whose office was shattered by a pipe bomb four months earlier. The bomb was either thrown or placed underneath the van of District Ranger Guy Pence, parked in the driveway of his house. The explosion destroyed the van and broke a few windows in Pence’s home. Pence was on a horseback trip in central Nevada but his wife and three children were in the house in a quiet residential neighborhood on the south side of Nevada’s capital city.”
Luckily, none of them were hurt. This happened around the time that the Unabomber killed the head of the California Forestry Association and the Oklahoma City bombings occurred (Timothy McVeigh was associated with the Sovereign Citizen Movement, an anti-federal movement, that showed up to support Cliven Bundy, among others). The bombing at Pence’s office and home were the first on a federal facility or employee in Nevada since Halloween 1993, when a bomb was tossed onto the roof of the federal Bureau of Land Management’s state headquarters in Reno. It is shocking to consider that rural ranchers were so upset over land issues that they would risk killing innocent federal employees trying to do their jobs.
“Federal employees and their families have been harassed and threatened by local residents, prompting some to resign. Snowmobilers venture into protected habitats, ranchers ‘trespass’ their cows on pastures set aside as off-limits, and residents take firewood from federal lands and forests without permits. In Jarbidge, even local politicians have abandoned civility and due process. Two county commissioners feuding over floor time at a public meeting had to be physically separated by the sheriff, and the former publisher of the local paper expressed his civic spirit by shooting an officer’s dog in the middle of town (3).” I recently spoke with a former Forest Service employee who worked in Nevada who said,
“It was very isolated and we were warned from the beginning that most of the people in town were not fond of the Forest Service or BLM. We were the “outsiders”. We were advised to live in the “compound” (government housing). We didn’t eat at the local café because we were told that they would mess with our food. Some people were nice to us but not many. So, we USFS employees just stuck to ourselves mostly. The residents had more disdain for federal law enforcement officers, though. And, there were certain families or individuals that were more notorious about it than others. I would say that most people were just indifferent to us, though. In fact, we never locked our front door. It was a very odd situation. On the one hand, we knew the political history of the area and who the more vocal main players were. We were always careful and safe, but I never felt like I was in any real danger while we lived there. It was just understood that certain residents got away with certain things because they knew that there was little that we could do about it. We were just too short staffed and had too large of an area to cover. It was more an atmosphere of veiled threats and intimidation.
That being said, there were certain people who stirred the pot quite a bit. Wayne Hage and his wife, former US Congresswoman Helen Chenoweth, were the ones who informed my husband of his illegitimacy as an armed federal law enforcement officer and that he was a trespasser. I remember sitting in their beautiful ranch home and listening to them smugly recite their ideology and attempt to justify it by quoting parts of the US Constitution.
Another infamous character was Dick Carver of Nye County. He was a former county commissioner and Sagebrush rebel who was known to carry a copy of the US Constitution in his shirt pocket. He took it upon himself to use his bulldozer to open up a closed FS road. Also, the Nye county sheriff’s office was well known to support Carver and his ideology. They were openly uncooperative with any federal law enforcement efforts.”
But worse than that, they were and are undermining their very own State Constitution. Their paradoxical and contradictory stance is astounding to the reasonable mind, especially when assertions of illegal federal law enforcement within the state is brought up. Article 1, Section 2 of the Nevada Constitution:
All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existence, and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority (7).
Why is this happening? Furthermore, why are politicians promoting this type of behavior instead up upholding the laws of the land and the state? Part of the answer is that there is an ideological shift taking place in the West, at a national level, from the extractive industries to an increased emphasis on protecting the environment. As these national priorities have shifted, the rural way of life has slowly declined and has left many feeling insignificant and neglected. Because most of the growth in Nevada has happened in Las Vegas and Reno, many rural people feel left out of the loop. Perhaps they feel that violence and rebellion is their only option to get heard, but in the continued conflict over how to deal with the change and growing divide over land use, violence and outright defiance to the law is doing more to hurt their cause – even if they have a worthy one. Furthermore, any reasonable person with a sympathetic or willing ear will disappear when this road is taken.
“In Nevada, resentment over the land dates back to the state’s founding. Settlers had expected to take possession of much of the land after the territory was admitted to the Union in 1864. But to the dismay of miners, ranchers, and loggers, most of the state remained in the public domain, and millions of acres were eventually preserved as national forests or placed under the direction of the federal Bureau of Land Management. The deep-seated seething came to a head in 1977. Angered by federal moves to increase fees for ranchers who grazed livestock on public lands and to set aside millions of acres as wilderness areas, the Nevada legislature backed a legal challenge to claim most of the federal land. Other Western states quickly followed suit, launching a regional movement that became known as the Sagebrush Rebellion (3).”
The Sagebrush Rebellion did have rural support and was fought by politicians, but ultimately a federal judge ruled against them. Much of the bravado and angst is egged on by politicians who may gain political capital, but who do not feel the national pinch that comes in response to such rebellions. “Federal ownership of western lands powerfully shapes the regional economy and society. Along with aridity, it is perhaps the defining characteristic of the West. Though a national park can be a source of pride; most federal land ownership (especially BLM jurisdiction) has always been a politically attractive whipping boy for western politicians (5).”
One such politician was Richard H. Bryan, who used the cause as a stepping stone to higher office. He argued before the court that Nevada, along with other states, had an expectancy upon admission into the Union that the unappropriated, unreserved and vacant lands within their borders would be disposed of by patents to private individuals or by grants to the States and that federal control of lands within western states’ borders prevented those states from standing on an equal footing with other states, as required by the Constitution. U.S. District Court Judge Reed cited the Property Clause within the Constitution and ruled against him. But like Nevada before, states such as Utah and Montana are still willing to gamble with the opportunity to successfully fail and further chip away at the harmony that law and knowledge of the law provide (5).
In the battle in Jarbridge over the Forest Service road, Republican state assemblyman John Carpenter and other elected officials were leading the charge (among many before it). Elko County claimed that it, not the federal government, owned South Canyon Road under an obscure federal statute dating from 1866, known as R.S. 2477. The statute essentially guaranteed settlers rights-of-way across federal land. When the Forest Service failed to repair the road after the flood, the County Commission decided to do it on its own, without bothering to obtain the appropriate permits. After the county had already filled in 900 feet of wetlands and changed the course of the Jarbidge River, the U.S. Army Corps of Engineers and the Nevada Department of Environmental Protection got an injunction against the county for violating the Clean Water Act. In 1999, Carpenter and two of his allies — attorney Grant Gerber and county GOP chairman O.Q. Chris Johnson — organized a group to reopen the road. Threatened with a federal restraining order, the men turned back, but they continued to spur on the Shovel Brigade (3).
A federal district judge ordered Elko County and the Forest Service into mediation to resolve their dispute over the road. After 100 days, the two sides reached a proposed settlement that gave the county essentially everything it wanted: a nice new road farther away from the fish, paid for by the feds. The agency even agreed to give the county the authority to maintain the road in the future. But the agreement stopped short of explicitly stating that the county “owned” the road. That wasn’t enough to satisfy Carpenter and many county officials, even though the county’s own negotiators had hammered out the terms. The County Commission refused to sign the settlement (3). This refusal to compromise is a consistent trend amongst such radicals, as we saw when Cliven Bundy refused to cooperate and demanded all law enforcement officers hand over the guns, the government disband the BLM and NPS, and that gates be torn down at National Parks.
Such actions and bravado are exasperating to citizens and county officials who are fed up with the anti-federalists. According to Williams, Karen Dredge, who retired after 17 years as Elko County clerk, pointed out how nobody stepped forward to help underwrite the county’s failed lawsuit over rancher Don Duval’s water rights. “The county is broke,” says Dredge. “We were told to cut all our departments’ budgets, and they want to fight a cause that really strays from county business. Some of our commissioners are activists, not leaders. It’s a room full of the same radical people with the same radical words, and they want us to foot the bill.” In Elko County, the anti-federal attitude comes from the top. In the late 1990s the district attorney drafted a public service announcement advocating discrimination against Forest Service employees. “This message is brought to you by the Elko County Commission, who encourages you to let the Forest Service know what you think about this by not cooperating with them,” the draft read. “Don’t sell goods or services to them until they come to their senses.” The commission did not act on the district attorney’s advice, but hostilities became so great that Gloria Flora, supervisor of the Humboldt-Toiyabe, resigned from her job in 1999, saying she feared for the safety of her employees (4).
This sort of rhetoric can be heard around St. George and on the Stand with the Bundy’s Facebook page encouraging people to refuse service to federal employees. Several federal employees at the St. George Field Office, who had nothing to do with Bundy’s roundup, got enough threats that they were sent home. It is people in positions of authority, whether they are church leaders, media types, or politicians, who are culpable if not flat out guilty, in promoting this destructive attitude and lawlessness. But they are not the ones who will pay. They may get a pat on the back from their fellow church goers, or their buddies, or gain some political clout, but once it’s over, they will go back to their regular jobs, homes, and life while the rural community suffers the backlash. Some of those local politicians include Utah Senator Mike Lee (who ran against Senator Bennett on none other than the issue of public lands) and Governor Herbert (suing the Federal Government for public lands and access roads), the Texas Attorney General Greg Abbott, and Governor Sandoval in Nevada.
But political maneuvering aside, this really hurts rural communities and people. The trend across the West is changing, whether people like it or not. It is going to take smart people to find fair and equitable solutions, not ignorant people bent on working out their differences through violence. People in rural communities need to be included in the march of progress and helped economically rather than left behind once they have helped greedy politicians move up the political ladder. According to Williams, “Many residents fear that the alpha-male approach to conflict resolution prevents the local economy from diversifying beyond casinos and gold mining. This is certainly not good for economic development, worries Glen Guttry, an Elko city councilman. Some people are afraid to move in because of all the controversy (3).”
Seething anger, conflict, and a stubborn hold on the past will kill any attempt at a flourishing economy for rural communities by scaring away investors, businesses, and people who might otherwise be interested. I once spoke with a rancher who was bemoaning snotty east coast college graduates that come out to the West and tell him how the range works. I suggested that he offer internships so that they could learn what he was talking about. He mused on that. I would posit that rural people need to take time off to get degrees in biology, geology, law enforcement, environmental science, and law, etc., and then go back to their communities better equipped to help them. Perhaps even get jobs within land management agencies where their unique perspective can shed light on situations that would otherwise not get it.
As old Marshal Cogburn said in True Grit, “If you don’t have no schooling you are up against it in this country, sis. That is the way of it. No sir, that man has no chance any more. No matter if he has got sand in his craw, others will push him aside, little thin fellows that have won spelling bees back home.” Might and grit will only get you so far, and will do more for opportunistic politicians than the regular citizen. It appears that Nevada is as lawless as ever. It is time for those with sway and power to be the voice of reason and help the people of rural Nevada transition to the New West with respect and dignity and encourage rural Nevadans to give dignity, respect, and fair treatment to the federal employees caught in the middle. Smarter not harder comes to mind. Cliven Bundy is in the limelight right now, but it won’t last, and the consequences of his actions may turn out to be more toxic to the rural individual than the Federal Government ever could be.
For more history on the Posse Comitatus that started during the reconstruction of the South, the Sovereigns Movement, and Cliven Bundy’s link to them and his stance on sheriffs being the final authority, etc.
(1) PBS Whiskey Rebellion: http://www.pbs.org/wgbh/amex/duel/peopleevents/pande22.html
(2) Richard H. Kohn, The Washington Administration’s Decision to Crush the Whiskey Rebellion: http://arch.neicon.ru/xmlui/bitstream/handle/123456789/4145794/JournalofAmericanHistoryjah_59_3_59-3-567.pdf?sequence=1
(3) Mother Jones, The Shovel Rebellion: http://www.motherjones.com/politics/2001/01/shovel-rebellion
(5) Story of Kleppe v. New Mexico: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1454&context=facpub
(6) A long history of armed Constitutional vigilantism predates Bundy Ranch: http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/bundy_ranch_vigilantism_going_mainstream_the_idea_that_the_constitution.2.html
(7) The Irony of Cliven Bundy’s Unconstitutional Stand, by Matt Ford: http://www.theatlantic.com/politics/archive/2014/04/the-irony-of-cliven-bundys-unconstitutional-stand/360587/