Why state efforts to grab federal land keep failing
State Legislatures magazine/April 1980: Fierce regional sentiment; generations of history; tangled political and legal questions; new economic and social realities …
Christopher A. Wood/Washington Post/May 1995: Buildings damaged by anonymous bombers. Armed men threatening federal officials. Politicians passing local ordinances repudiating federal law.
These two quotes, separated by 15 years, fairly portray the evolution of the image of efforts to wrest control of public lands from the federal government. Nevada has been in the forefront of these efforts, which continue today with Senate Joint Resolution 1 at the 2015 Nevada Legislature.
It’s an effort that reflects an enduring notion in Nevada politics, that the small counties are the “real” Nevada and that politicians can advance by tailoring their appeal to that region. This notion has had little election success, but a good myth dies hard, and state politicians keep pandering to the small counties. And few envisioned the 2014 election, which swept Republicans more oriented to dogma than practical action, into the legislature.The Sagebrush Rebellion
In 1976, Congress enacted the Federal Land Policy and Management Act, which outlined new functions of the Bureau of Land Management, set federal policies on control of public lands and mining, and established multiple use, sustained yield, and environmental protection practices and policies. It also ended the practice of homesteading, which—along with benign uses—had been used to shift tribal lands to whites. More to the point, the new law made federal land holdings permanent. It was not a new idea—the original founding Atlantic coast colonies that held land had willingly turned it over to the federal government.
On the quarter-century anniversary of the act, the BLM said, “[B]ecause of the insight and vision of the people who crafted it, FLPMA provides us with the tools we need to cooperatively and creatively manage the public lands, and in the process, dispel the notion that a variety of uses and resources cannot co-exist.”
Not everyone agreed. “The legislation dashed Western hopes that the U.S. would gradually turn control of public lands over to local governments, which residents argue could do a better job of managing public land than bureaucrats stationed in Washington,” reported U.S. News & World Report.
In 1979, Nevada Assemblymember Dean Rhoads convinced his colleagues in the Nevada Legislature to launch an effort to take state control of federally held land through a lawsuit.
Rhoads is one of those very conservative Republicans—a longtime member of the American Legislative Exchange Council (ALEC)—who later found himself less comfortable with the Republican Party as militants, evangelicals, and social conservatives used the GOP as a vehicle for increasingly extreme public policies and accused those traditional conservatives who didn’t go along with being RINOs. In getting the Rebellion legislation through the Nevada Legislature, Rhoads listened to criticism with an open mind, accepted amendments, treated critics with respect.
Many, including some liberals who should know better than to use guilt by association, have portrayed the Sagebrush Rebellion as akin to the extremist groups like county supremacists (fired by a theory that county officials, particularly sheriffs, trump federal power) who followed later. The Southern Poverty Law Center, which monitors hate groups, said in a report after the 2014 Cliven Bundy standoff, “Today’s disputes with federal authority, many long simmering, are an extension of the earlier right-wing Sagebrush Rebellion, Wise Use and ’county supremacy’ movements.”
In fact, while there were extremists on the fringes, the Rebellion was a peaceful movement motivated by issues. “The bill does not constitute a rebellion, a revolt, or a secession,” Rhoads told the Assembly on April 25, 1979, the day the Nevada Assembly voted for Assembly Bill 413. “It does constitute a constitutional challenge to the right of the federal government to unilaterally control and manage the public domain and to hold the land in perpetuity without any conversion to private ownership.” Many moderate legislators who voted for Rhoads’ bill would not have gone along otherwise.
It was later organizations—from which Rhoads dissociated the Rebellion—that gave the issue its unsavory reputation.
In national news coverage, such as the U.S. News & World Report article quoted earlier, journalists tended to describe the Sagebrush Rebellion as representing the West and Westerners. But once it was authorized by the Nevada Legislature, public attitudes began to evolve.
In Nevada, the passage of the bill had been low key, but soon its provisions were becoming well known through heavier news coverage. In addition, urban dwellers—who included most Nevadans—got a taste of what the Rebellion prevailing might be like when Ronald Reagan became president in 1981. Reagan, a Rebellion supporter, appointed a wide array of officials who sympathized with the anti-public lands movement, and implemented policies that advanced movement goals.
Of course, every political action has an equal and opposite reaction, and as Reagan’s policies threw more attention on the goals of the Sagebrush Rebellion, and the implications of Reagan’s pro-Rebellion policies became clearer, it lost support in the urban areas of Nevada where the state’s open spaces were beloved. Interior Secretary James Watt became a lighting rod. Public concern centered on the specter of development and the cost.Opposition forms
No one knew what the cost of providing services such as law enforcement and fire protection to such huge swaths of land would be, or the consequences of the state's gain of legal liabilities, or the depth of the loss of various kinds of federal funding and subsidies, or the cost of providing infrastructure. Advocates of the Rebellion had produced a study arguing that there would be few costs, but there was no independent assessment along those lines, and the state was deep within the throes of the impact of 1978’s California tax-cutting measure, Proposition 13, a ballot measure whose successful passage had caused a groundswell of budget cutting in state governments across the nation.
A 1929 offer by President Herbert Hoover to turn public lands over to the states had foundered in part on just this issue. Comic Will Rogers wrote, “Nobody knows why Mr. Hoover got it in for the states and wanted to sick the land on them. If the Federal Government can’t keep it up what could some poor state like Nevada do with it? … Now, if you are going to force this extra percentage of land on them you are just going to make them that much poorer.”
Just as threatening was the risk that the state, if it obtained the land, would sell it off to private interests for development. Washoe County Sen. Cliff Young—a former GOP U.S. House member who later became a Nevada Supreme Court justice—said, “If it looked like the state was going to get that land, [developers would] spring out of the desert like wildflowers. I just feel safer if the key’s back in Washington.”
There was considerable evidence for the view that states are less responsible custodians. At statehood, Nevada had received 4 million acres of public land. The land was supposed to be held in trust for the state’s schools, but state government regularly used it for other purposes, sold it off in corrupt land deals—some of them involving state legislators—and lost virtually all of it. Today there are only 3,000 acres in six counties remaining and the Nevada Legislature is mulling over how to raise money for schools (“Congress gave the new state of Nevada 4 million acres to pay for schools. What happened to them?” RN&R, July 18, 2013).
In addition, the behavior of county governments was not heartening in considering how the land in state hands would be used. Some counties are entirely undiscriminating in what they will accept to generate business, such as private waste incinerators and nuclear waste dumps, so much so that former Assembly Speaker Joe Dini of Yerington once said that Lincoln County will take “any dirty project.”
Sentiment in Nevada turned sharply against the Sagebrush Rebellion. That’s not to say the Rebellion had no victories. The ascendancy of Reagan had changed federal land policies, and many Rebellion supporters were satisfied with that. They had to be. There was no sentiment remaining in the urban-dominated legislature to keep the Rebellion going in the state of its birth. The lawsuit was never filed.Rebellion aftermath
But there were those who were not satisfied, and those on the fringe now came to the fore. Outflanked in every political way, they resorted to more radical, episodic activism, often involving guns.
On July 4, 1994, Nye County Commissioner Richard Carver, atop a bulldozer and in front of a crowd, illegally opened a National Forest road, Jefferson Canyon Road, that the U.S. Forest Service had closed for archaeological and environmental studies. “After Commissioner Carver strayed from the right-of-way, Forest Service Special Agent Dave Young stood directly in the path of the bulldozer and displayed a sign ordering the commissioner to stop,” Federal Judge Lloyd George later wrote. “Although Young continued to display the sign while the bulldozer was on national forest land, Commissioner Carver did not stop his activities.”
The court ruled against Carver, who ended up on the cover of Time. (Easterners are always bewitched by these confrontations.) Carver later said, “All it would have taken was for one of those rangers to have drawn a weapon. Fifty people with sidearms would have drilled him.”
This became the pattern for what became known as the county supremacy movement—short episodes in which guns could enforce fleeting symbolic victories over the federal government.
On July 4, 2000, 300 protesters at tiny Jarbidge opened a road that had been damaged by flooding and kept closed by the Forest Service because of erosion and decreasing numbers of bull trout in a nearby creek.
And, of course, there is the Bunkerville confrontation last year, in which a small army of people, many of them with weapons, gathered to protect scofflaw rancher Cliven Bundy from BLM action over his failure to pay his fees for grazing his cattle on public land. It was another “victory” accomplished through sheer force of arms and the restraint of federal officials.
There have been numerous other disputes and incidents. On Oct. 31, 1993, the state BLM headwaters in Reno was bombed by person(s) unknown.
On March 29, 1995, a Forest Service restroom near Elko was bombed, persons unknown. The next day a Carson City Forest Service office in Carson City was bombed, persons unknown. The day after that, a Sparks Forest Service office received a phone call: “You’re next.”
Federal land agencies started changing their routines for safety reasons, letting employees drive their private vehicles on official business and allowing rangers to skip wearing their uniforms. They often traveled in pairs.
Local governing officials and even law enforcement officers allied themselves with the county supremacists. Seventy counties adopted resolutions challenging legal authority on federal land. A few weeks after Bunkerville, an emboldened crowd of supremacists on all-terrain vehicles led by a local county commissioner tore up Recapture Canyon in Utah, closed by the federal government to all but hikers and horseback riders because it was full of dwellings, artifacts, and burial sites of the ancient Pueblos, a people who lived between 1150 and 1300 AD and then disappeared.
Shortly after the Bundy standoff, Bundyites Amanda and Jerad Miller killed two police officers and a resident in Las Vegas. Other Bundyites hastened to claim the two had been asked to leave the Bunkerville standoff, which was never confirmed.
On June 14 last year, a California man shot a BLM ranger and a California Highway Patrol officer near the South Yuba River.
In May last year, two men wearing hooded sweatshirts brandished a handgun at a BLM worker driving an agency vehicle, holding up a sign that read, “You need to die.”New initiative
At the 2013 Nevada Legislature, advocates of a public land takeover took a new approach designed to avoid the influence of the urban areas that opposed the Sagebrush Rebellion. They won creation of a Land Management Task Force to study the issue and report back to the next Legislature. But this was an unusual interim study. It was headquartered not in the Legislative Counsel Bureau but at the Nevada Association of Counties, a lobby group. And it was composed of one person from each county, all chose by county commissions, a deft maneuver that meant it was malapportioned—the 15 smaller counties, with 12 percent of the state's population, had 88 percent of the members. Clark and Washoe, with 87.9 percent of the population, received 2 out of 17 members. The panel, in other words, was rigged to produce pro-takeover recommendations by shorting the urban areas on votes.
The result was Senate Joint Resolution 1, “transferring title to certain public lands to the State of Nevada in accordance with the report prepared by the Nevada Land Management Task Force.” (Assembly Bill 408 has a similar goal.)
But if S.J.R. 1 is approved, the legal problem the Sagebrush Rebellion faced will also face the new effort—there is no known legal theory that supports it.
Richard Bryan, who was state attorney general during the Sagebrush Rebellion period, said last week that he worked hard to build a case. “We did press the issue,” he said. “We spent quite a bit of time.” Bryan hired Brigham Young University Law School founding dean Rex Lee, later solicitor general in the Reagan administration, for Rebellion litigation.
Initially, the attorney general’s office tried for a quick hit—amending an already existing lawsuit by the state against the U.S. Interior Department dealing with land patents to add a Sagebrush Rebellion-related claim. But U.S. District Judge Edward Reed ruled against the state and the U.S. Court of Appeals for the Ninth Circuit upheld him. So the AG’s office moved on to a full-fledged Rebellion lawsuit.
Faced with a field in which there was little encouraging case law, the office focused on two ways of making a case. One was that Nevada—which, in its 1864 constitution, had “forever disclaim[ed] all right and title to the unappropriated public lands” in the state—had done so under pressure and thus had not been admitted to the union on “equal footing” with other states.
What was also found in the case law was that, legally, it was not enough just to say, “We want the land.” If it could be shown that there were ways that the state’s lack of control over territory was preventing it from exercising its sovereign functions, then the state might have a case. Former deputy attorney general Larry Struve last week said the Department of Conservation and Natural Resources—where the state land registrar’s office was located—was asked to come up with specific examples of how Nevada’s sovereign authority was being thwarted by federal public land ownership. It was never able to do so.
The AG’s office explored a number of other theories, but in the end nothing that supported the Rhoads bill. “We concluded that we just weren’t making any headway,” Bryan said. “We argued that, in effect, under the doctrine of equal standing that indeed the public lands were within [state influence].” But that alone wasn’t enough.
“We found some cases that were not clearly on point, such as a dispute over where a state capital was located,” Bryan said. That was an Oklahoma case. “In the end, we didn’t get any traction on it.”
He said he believed the current measure in the Nevada Legislature “would not pass constitutional muster. We raised the same legal issues.”
There is actually no reason to pass S.J.R. 1 or similar measures. It is said that Rhoads’ original measure is still on the books. But until someone comes up with a way of making a legitimate case, launching another lawsuit will just be an intentional waste of money.
These matters do not bother the supremacists. Like Cliven Bundy, they tend to judge the validity of law by the outcome—court rulings that find in their favor are legitimate, those that rule against them are illegitimate. No system of law can function that way, of course. An unwillingness to abide by court findings undercuts the whole basis of law.
The supremacists tend to cherry-pick theories and market their case on that narrow basis. It exasperated serious legal scholars who know how intellectually dishonest it is and how good people were being sucked in on the basis of partial information. When she was Nevada attorney general, Frankie Sue Del Papa addressed the supremacists directly: “There has been little or no mention of the vast body of law which contradicts your position. I think you owe it to the people whom you address to explain its existence.”
Moreover, the supremacists’ dogma—strong on private enterprise taking the land—exacerbates urban concerns.
Rhoads himself has long been skeptical of the new face of efforts to take control of federal lands. He once said he did not want the term Sagebrush Rebellion applied to later groups, such as the effort by Carver. He has regularly disassociated the Rebellion from incidents like the Jarbidge Shovel Brigade. “The original thrust of the Sagebrush Rebellion was more friendly and more credible,” Rhoads told journalist Florence Williams in 2001. “The Jarbidge thing is more a right-wing group opposed to a lot of the things the federal agency does. They’re not willing to cooperate and compromise. Compromise to them is a dirty word.”