Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at thomasmnv@yahoo.com.
Over the years the battle to grant states greater control over the vast swath of federal public land have ebbed and flowed. There have been court battles, mostly lost. There have been legislative resolutions and bills, mostly ignored, as well as numerous congressional hearings and testimony.
More recently there have been instances of civil disobedience at the Bundy Ranch in Bunkerville and the Malheur National Wildlife Refuge in Oregon that have resulted in dozens of federal indictments for conspiracy and assault.
All for naught. To this day the federal agencies control 50 percent of the land in the West and 85 percent of Nevada.
But Ruby Valley cattle rancher Clifford Gardner may have unearthed an overlooked aspect of the U.S. Constitution that speaks to the core issue.
Gardner is intimately familiar with the legal and moral arguments, having waged his own losing court battle over federal land grazing rights, or the lack thereof.
In 1992, a fire burned two of Gardner’s allotments. The Forest Service told him to not graze in 1993 and 1994, but Gardner turned out cattle in the spring of 1994.
The legal battle ended with a ruling from the U.S. 9th Circuit Court of Appeals in 1997, saying, “Gardners contend that, while the United States may have received the land in question from Mexico in the Treaty of Guadalupe Hidalgo in 1848, the United States was entitled only to hold the land in trust for the creation of future states, and was not authorized to retain the land for its own purposes. After Nevada became a state, Gardners argue, all of the public lands within the state boundaries reverted to the state of Nevada.”
The liberal court dismissed that claim out of hand, saying “all nongranted lands previously held by the Government of Mexico passed into the federal public domain.”
It also dismissed his argument that all states are supposed to be admitted to the Union on an equal footing with the original states. The judges said the Equal Footing Doctrine only applies to political standing and sovereignty, not economic equality.
The court held that the Property Clause gives Congress the power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”
Another section of the Constitution states that Congress has exclusive authority “over all the Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings …”
“What I’ve learned is that when they wrote that clause into the Constitution that during discussion they said very clearly that their greatest fear was that should the federal government ever own vast amounts of land in a state it would awe the state into obedience,” Gardner said in a recent interview. “That argument, original intent, I would call it, has never been presented either back in Sagebrush Rebellion I or Sagebrush Rebellion II. So I feel that is quite important.”
Gardner spells out his arguments in a 46-page white paper that he hands out when speaking to groups on this land issue.
As the nation expanded and acquired more unappropriated lands, Gardner explains, it was the practice that the government would dispose of the land, but as time went on this became less the case.
“Over the years, as I come back and look at this, I come to realize we had a lot more good arguments against the federal government’s continued control of these lands,” Gardner says, noting that one of them is how federal agencies can claim so much of the land in Nevada and not afford people their constitutional rights?
Gardner relates that James Madison wrote in 1787 that Elbridge Gerry raised concerns about giving Congress exclusive power over purchased lands, saying “that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government.”
Delegate Rufus King moved to add the phrase “by consent of the legislature of the state.” It passed unanimously.
So, if the drafters of the Constitution deemed it necessary to prevent Congress exerting undue influence by purchasing land, is it any less undue influence by retaining 85 percent of the land in a given state?
With the exception of the Nevada Test Site, few of the federal land acquisitions have been with the consent of the Legislature.
