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April 17, 2014

Why Is Most Of Nevada Federally Owned Land?

One of the first questions that leapt out at the Editorial Staff when the Bundy Brouhaha began driving pretty much everyone on the Internet batsh** insane was, "Why in the heck is so much of Nevada federal property"? It's not that we didn't realize that a good deal of Nevada was federally owned, but over 80% seemed a tad bit excessive. Over at Grim's place, we've been arguing over land ownership concepts in the comments to an excellent post by Texan99, who comments:

I'm not often on the fence, but I can't bring much order to my thoughts about Cliven Bundy's Nevada standoff with the feds. He's an unsympathetic victim fighting an appalling machine. His cause fails to inspire me, and yet the following sentiment rings quite a bell...

I was curious about how the present state of affairs came to be, so I did a little Googling and came up with this useful post:

Where did the Federal Public Lands Come From?

...In 1848, the United States, following the Mexican-American war, purchased the land of what is now the southwestern part of the country from Mexico and paid $15 million. Present day Nevada and California were a part of that purchase along with Utah, most of Arizona, and the western portions of Wyoming, Colorado, and New Mexico . By 1846 the United States had claimed the Oregon Territory -- modern day Washington, Oregon, and most of Idaho. The U.S. Army was called to defend the lands. The small population of these territories meant that the U.S. Army needed to draw its officers and soldiers from the established lands east of the Mississippi. Except for California, there were virtually no non-Indians in most of these lands. It was the U.S. government and the existing residents in the east who fought, purchased, and secured these lands for the United States.

...These purchases and claims by the people of the United States of western lands established federal ownership of those lands. Later as western states were admitted to the Union, State Constitutions acknowledged the federal role in acquiring the lands with the right and title to unappropriated public lands remaining with the United States. (Lands which had already been appropriated by private citizens or earlier granted from Mexico remained appropriated. Thus, the continuity of land owership for settlers remained intact.) Congress, then, has power over the public domain land and many laws passed by the Congress govern federal agencies responsible for management of the public land.

How did Settlement and Expansion Occur on the Federal Public Land ?

Laws were enacted by the Congress through the 19th and early 20th centuries to encourage the settlement of the western federal lands. Millions of acres of federal public lands were given to railroad companies to develop transportation routes and communities, to farmers and ranchers for agriculture, to miners for finding valuable minerals, and loggers for timber to build cities still in their infancy. The result was that most of the agricultural lands were appropriated directly from the Federal Government for private uses. Mineral wealth was appropriated for private uses directly from the Federal Government. Forested lands of high productivity were appropriated directly from the Federal Government for private uses. Federal Ownership was a key link in providing an orderly way for property to be acquired from both territories of the U.S. and from the states once admitted to the union.

We dimly remember learning some of this in US History classes in high school, but here's where things get really interesting:

How did Nevada differ in the Amount of Lands Acquired from the Federal Public Lands?

Upon admission states were given two sections of public land in each township for schools. Nevada, however, did not want those scattered "desert" lands. Instead Nevada petitioned Congress to trade those sections for 1 million acres of Sage land anywhere in the state. Congress ultimately granted Nevada a choice of any 2 million acres of unappropriated lands. Nevada selected 2 million acres of the best land (near or with water) and promptly sold all of it to private uses.

With the addition of a few facts and some history, this looks a whole lot less like evidence of Big Government Run Amok or oppression of helpless states and a lot more like a sensible scheme in which the federal government essentially made it possible for states to become established, attract settlers, and raise revenue.

Go figure. We were so hoping for a villain.

During our morning shower we had been idly wondering why no one had pressured the federal government to divest itself of all this glorious Nevadan land. Having lived in the desert a time or two, we suspected the answer might be something along the lines of, "No one wants it/no one is willing to pay the federal government for it."

Here's are two interesting maps. The first one shows the land ceded by Mexico to the US under the Treaty of Guadalupe-Hidalgo:

mexican_cession.jpg

The second shows how much federally owned land currently exists in each state:

map-owns_the_west.jpg

The interesting takeaway here to us is that a fairly frequent narrative on the right - that the states created the federal government, not the other way around - doesn't appear to be terribly accurate. We've been surprised (and somewhat horrified) at some of the arguments this case has provoked on the right, as well as at the power of a narrative to shape public opinion.

There are aspects of this case that powerfully appeal to the emotions. But we can't bring our ownself to endorse the notion that a private citizen operating a for-profit business has any kind of inalienable right to use publicly or privately owned lands free of charge. Nor does such an individual possess the right to pay a non-owner of the land (state or local government) monies properly due to the actual owner of the land (the federal government). But of all the things we've read, this excerpt from the last link in Tex's post best captures our position:

When can one refuse to obey the law without expecting to bring the whole thing down? Certainly such instances exist: I daresay that I would not stand idly by quoting John Adams if a state reintroduced slavery or herded a religious group into ovens or even indulged in wholesale gun confiscation. But Bundy’s case is not remotely approaching these thresholds. Are we to presume that if the government is destroying one’s livelihood or breaking one’s ties with the past, one can revolt?

The widely expressed opinion that to disapprove of any act of civil disobedience somehow equates to saying that no one may revolt or rebel, ever, no matter the provocation simply doesn't make any sense. It's the mother of all slippery slope arguments. The Founders clearly understood this, or they would not have written these words:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security...

When the federal government, as the lawful owner of real property, defends its right to dispose of that property as it will, this is not absolute Despotism. It's not even close.

We should take care with arguments that suggest property rights exist subject to claims by an individual that he or she is entitled to valuable goods, services, or access without obtaining permission from or providing compensation to the rightful owner. If we endorse such specious claims, what separates us from the Occupy crowd?

Posted by Cassandra at April 17, 2014 07:13 AM

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Comments

Can't speak for the others, but my own take was that the .fedgov is clearly in the legal right. Kicking someone off of land that has a long standing convention of acceptable use over a tortoise is a bad idea in my opinion, but it is lawful. It's rude, and possibly even malicious, but not illegal.

That said, I'm no longer completely certain this is the case. There seems to be some really wierd laws governing federal land usage that I won't even pretend to understand.

However, the .fedgov has gone to court, twice, to collect this bill and have Bundy remove his cows. Clearly, another sternly worded letter would be insufficient.

But calling out a small army to arrest someone over a tortoise and an overdue bill is like going after a fly with a howitzer. We don't bring that kind of firepower to arrest mobsters with hundreds of violent crimes. What is it about an obstenant jackwagon improperly letting his cattle graze that rates *that* kind of response?

Call him back to court (he's demonstrated a history of showing up to those) and arrest him for contempt. Clean, peacable, upstanding.

With two court cases won, I more than willing to accept the .fedgov's ends, but its means stink to high heaven.

Posted by: Yu-Ain Gonnano at April 17, 2014 11:50 AM

Brace yourself: I agree with pretty much everything in your comment :p

Posted by: Cassandra at April 17, 2014 11:52 AM

Making up the particulates of rebellious atmosphere there are the Girondins, the Jacobins, and the Cassandras. The Cassandras wave the facts. The Cassandras are disregarded. The atmosphere had already been poisoned. The facts had no effect.

The lawlessness - DoJ, EPA et al; the humiliations – TSA; the surveillance – NSA, and all the rest of the shadow regulatory government with their Czars and Tsarinas and ukases; the klepto-kakistocracies, Federal and State; the very illegitimacy – in all its applications - of the commander-in-chief; all conspire to make many people not just unhappy or discontented, but terrorized and angry.

For every unsympathetic victim fighting an appalling machine there are thousands sympathetic; for every instance where no evidence exists of Big Government Run Amok, there are thousands where it is abundant.

Tea merchants had done little to deserve the destruction of their property, the tea even less, yet both had been done in – such is the way of “we’re not going to take it anymore”. The British subjects-revolutionaries of two hundred and two score years ago had nothing of the sort to complain about that presently assails the American citizen. Should the instance of the commencement of our rebellion be lacking in substance there is more than enough to warrant its continuation.

Posted by: George Pal at April 17, 2014 12:58 PM

Well, that certainly part of it.

The major thing that allows civilization to florish is trust. There is an rapidly growing segment that simply does not trust the .fedgov. And not without reason. If the .fedgov told me the sky was blue I'd still go check for myself.

But increasingly one side sees The State as an enemy of the people and the other see the people as enemies of the State.

Posted by: Yu-Ain Gonnano at April 17, 2014 01:32 PM

A couple of takeaways for me:
The interesting takeaway here to us is that a fairly frequent narrative on the right - that the states created the federal government, not the other way around - doesn't appear to be terribly accurate.

Absolutely wrong, and frankly a bit dangerous in my mind. The States absolutely DID create the federal government, and the Founders absolutely make that case clear in the very documents themselves. It is the People and the States in which they reside which acceded power to a Federal government in order to create it. Yes, that Federal government pre-dates the creation of 37 States in the Union, but by no means did the Federal government create the States. And I put it forward that considering it to be the case that the States were created as subdivisions of the Federal government (rather than a Federal government being created as a unifying body for the States) is one of the concepts that has allowed such overreach by the Federal government well past its intended boundaries.

Next:
Upon admission states were given two sections of public land in each township for schools.

Isn't it interesting that the Federal government agreed to grant two sections of "public land" (a misnomer I will come back to) in each township in these Western states, which still retained for them the overwhelming majority of land? And yet, the Louisiana Purchase, a much larger and (at the time) more expensive purchase of land than that which was acquired by the Treaty of Guadalupe-Hidalgo, shows none of that same withholding of so much land. Why is that?

Well, the most immediate answer seems to be "no one wanted it", but is that true? Nearly half of California is government owned land, and yet, it is also some of the most desirable real estate in the nation. Oregon as well. And you cannot convince me that North Dakota (the 48th most populous state) is so desirable that the Federal government was able to divest itself of all but 2.7% of the territory to be settled, but cannot seem to find nearly so many buyers for land in Washington State. So "desirability" really doesn't seem so likely. So what is the difference? Look at the States West of the Rockies, and consider "when did this territory become States", and the answer for the vast majority of that land is "after the Civil War." When the States were absolutely put in their place by a Federal government which went from being bound by the 10th Amendment to one which dictated policy down to the States.

And please do not misunderstand. I'm not by any means saying "boy howdy, do I wish we had slavery back". I am saying that the 10th Amendment became largely defanged by the Civil War. And the relationship between the States and the Federal government became largely a subservient to superior rather than the intended organizing structure to various equals. And how interesting that the policy of dividing federal lands went from "get it in the hands of the States and People" went to "hold it in control of the Federal government except for small land grants for schools."

Once again, look at North Dakota. 2.7% of all that land belongs to the Federal government. And yet, less than a quarter of a percent of the US population lives there. Meanwhile "undesireable desert Nevada" holds over four times the population and is over 84% of it is still in Federal hands over a century later? Why? Because no one wants it?

And I said I'd come back to "public land" being a misnomer. "Public" normally means (and should mean) "for use by the People or for their benefit". What constitutes "public land"? It ought to be national parks, interstates, military bases, libraries and such. What it should NOT be is "vast swathes of land that no one can use". And renting it out to ranchers and such is not "use of or for the benefit of the People" it is a revenue stream for the Federal government. And to claim that no one wants that land is patently untrue. Clearly ranchers want that land. And if the Federal government can divest itself of all but 2.7% of North Dakota, there's no reason it cannot (or indeed should not) divest itself of that land, save for what it must own for the use of or benefit of the People as a whole.

Posted by: MikeD at April 17, 2014 02:15 PM

On your first point, I don't think I meant to say that the fedgov created the states. Or that the fedgov created Nevada.

Just that when talking about states like Nevada (and frankly pretty much any state west of the Mississippi), the facts are that the federal govt. purchased large tracts of land from foreign nations (Russia, France, Mexico, etc) and then served as a facilitator for settlement and land transfers.

I agree my wording was everything but clear - didn't have time. But I think it's a really important point that "but for" the existence of a powerful federal (central) government, it is extremely unlikely that many of these states would even exist under the United States. This is a perfect example of how having a central federal government is *good* for a nation.

That's a point that all too often gets lost in these debates. People start going on about the Founders as though 13 former colonies were all that mattered. But we have a Constitution precisely because the Articles of Confederation were too weak to do the job. We take all the benefits of a central govt. for granted because we can't imagine them not being there.

That was my point - admittedly poorly expressed in the small time I had this morning :)

I don't think my argument is at all dangerous.

Posted by: Cassandra at April 17, 2014 03:16 PM

I put it forward that considering it to be the case that the States were created as subdivisions of the Federal government (rather than a Federal government being created as a unifying body for the States) is one of the concepts that has allowed such overreach by the Federal government well past its intended boundaries.

I didn't intend to argue anything like this, FWIW, so I agree.

Posted by: Cassandra at April 17, 2014 03:17 PM

renting it out to ranchers and such is not "use of or for the benefit of the People" it is a revenue stream for the Federal government. And to claim that no one wants that land is patently untrue. Clearly ranchers want that land.

Then why aren't they lobbying to get it? Maybe they are. But I suspect no one wants to pay for what they think they can get for free.

I think one major difference between the western states and the Louisiana purchase is water. Large numbers of people are not going to go live in an area where there's no water, and this was before modern utilities.

Note that the land the state of Nevada wanted was all close to the water. That's a huge factor out west. It absolutely limits who is willing to or able to live there.

Posted by: Cassandra at April 17, 2014 03:22 PM

How do you grow food in the desert? If the land isn't arable, you don't get homesteaders.

Posted by: Cassandra at April 17, 2014 03:23 PM

Perhaps I was over-harsh. I simply was trying to convey that words mean things, and the implication that the Federal government is somehow more legitimate than State governments (or that the State governments are nothing more than subservient Federal subdivisions) is a dangerous idea that I believe has steadily become a mainstream concept. It turns the entire foundation of the nation on its head.

Ultimately, I think the stronger point is the comparison between the Treaty of Guadalupe-Hidalgo territories and the Louisiana Purchase territories. Why is it that the former are so incredibly disproportionate in Federal land ownership over the latter? What possible need is there in the case of the Treaty of Guadalupe-Hidalgo territories to sit in Federal hands while the Louisiana Purchase territories have long since passed to State or private ownership?

Posted by: MikeD at April 17, 2014 03:24 PM

Then why aren't they lobbying to get it? Maybe they are. But I suspect no one wants to pay for what they think they can get for free.

Is there any evidence of this? I can just as reasonable assert that I suspect that the Federal government refuses to sell the land because it's a source of revenue for them. That doesn't make my suspicion any more or less true.

I think one major difference between the western states and the Louisiana purchase is water. Large numbers of people are not going to go live in an area where there's no water, and this was before modern utilities.

And yet four times as many people live in Nevada as compared to North Dakota. If it were an issue of land desirability, you'd think that the Federal land percentage in North Dakota would be higher. And if it's a modern convenience difference (i.e. more people live in Nevada now because of technological advancement) then it would stand to reason that North Dakota should have seen a similar increase in population. But no such increase occurred.

Note that the land the state of Nevada wanted was all close to the water. That's a huge factor out west. It absolutely limits who is willing to or able to live there.

And no less true for North Dakota. And yet, the Federal government still only owns 2.7% of the land there. Also, if water is the issue, then why, when the Pacific Northwest is a rainforest, is so much of that land still in Federal hands. I think the evidence is clear that the percentage of Federal land ownership has less to do with desirability and more to do with a different outlook on the part of the Federal government on allowing the transfer of land to the States and People.

How do you grow food in the desert? If the land isn't arable, you don't get homesteaders.

Again, Oregon and Washington State are clearly no deserts. North Dakota receives less rainfall than either State, and has less agriculture than California. And yet it's only 2.7% Federally owned. Water, agriculture and desirability of land simply is inadequate to explain why the Treaty of Guadelupe-Hidalgo territories are still overwhelmingly owned by the Federal government.

Posted by: MikeD at April 17, 2014 03:36 PM

And I need to be crystal clear here. I am thoroughly enjoying this discussion, mostly because you're such a very sharp and intelligent debater. You force me to think more carefully, weigh my position more, and craft my arguments with greater attention to detail; all because I know that shoddy work will be eviscerated by your virtual pen.

Posted by: MikeD at April 17, 2014 03:41 PM

Perhaps I was over-harsh. I simply was trying to convey that words mean things, and the implication that the Federal government is somehow more legitimate than State governments (or that the State governments are nothing more than subservient Federal subdivisions) is a dangerous idea that I believe has steadily become a mainstream concept. It turns the entire foundation of the nation on its head.

Yu-Ain said something very similar a while back but I was too busy to reply:

increasingly one side sees The State as an enemy of the people and the other see the people as enemies of the State.

This is a really, really important point to me: I don't know anyone who thinks the people are the enemy of (or exist to serve) the State. I've seen folks on both sides make arguments that resemble this, but only when they're trying to get to a specified outcome. They'll repudiate the argument in a heartbeat if the outcomes changes.

I think the Left somewhat justifiably sees the fedgov as an unbiased arbiter of (and protector of) the rights of minorities. This view came out of the Civil War and it's not without foundation. A system in which some states were free to abridge the basic human rights of slaves is a bad system. If a state ever tried to reinstate slavery, I'd be at the barricades in a second expecting the federal government to step in.

The Constitution is the supreme law of the land. Period. It limits federal (and state) power, it guarantees certain fundamental human rights (and no, Internet access is NOT one of those rights) that are so basic - so necessary - that they require the federal government to be able to override state governments.

This is a good system. It's healthy. And it's basically in need of a very good tune-up right now.

I'm always shocked to see conservatives arguing that state power is good and benevolent but federal power is evil and wrong/bad. It's not that simple. There are certain things only the fedgov can do.

Pretty much every rogue cop story we see is an abuse of *state* power. State and local governments have vast powers that we should be wary of, and personally I'm glad that the Constitution says slavery will not be tolerated even if some states want it.

The left is more friendly to the federal government because it is the only effective universal champion of minority rights. That power has been sorely abused in some instances: feminism and the civil rights movement have pushed some of the boundaries way too far.

The state and federal governments do check each other's power, and I think that's a good thing. I guess I'm just saying, "Let's not forget the good when we're trying to fix the bad".

I am thoroughly enjoying this discussion, mostly because you're such a very sharp and intelligent debater. You force me to think more carefully, weigh my position more, and craft my arguments with greater attention to detail; all because I know that shoddy work will be eviscerated by your virtual pen.

That's a service y'all have performed for me many a time as well :p It's why I keep doing this.

Posted by: Cassandra at April 17, 2014 04:15 PM

Then why aren't they lobbying to get it? Maybe they are. But I suspect no one wants to pay for what they think they can get for free.

Given that it appears (I could be wrong) that the ranchers have been paying leasing fees for quite some time, I don't think "Free" is the way they are getting it now.

It does seem more likely that the .fedgov is holding on to it, today, not because no one wants it, but because it is more valuable as 1) a revenue stream (no one could pay 100, 200, or 300 years of residual income up front), 2) leverage (do what we want or we'll kick you off).

160 years ago, maybe no one wanted it and the .fedgov retaining ownership made sense. That seems less true today.

Posted by: Yu-Ain Gonnano at April 17, 2014 04:18 PM

Mike:

In the olden days, towns formed at crossroads and ports and bays and places where the natural topography and man made infrastructure made it easier for larger cities easier to form. Much of the Midwest is dying because the railroads and manufacturing were the hub and when manufacturing began to move overseas, the railways that served it and make cities possible withered away.

When you go out into the desert out west, none of those conditions are present. The terrain is harsh (100 or 110 degree days, no water anywhere, mountains and barren land). I love the high desert but you couldn't pay me to live in the low desert.

Technology has mitigated this somewhat, but it's still a big deal. Most people want to be near the amenities: hospitals, schools, shopping, other services. Much of the west is remote, arid, or mountainous and the combination of sparse population and terrain makes infrastructure extremely expensive and difficult to build.

Afghanistan is like that.

I am not at all hostile to asking the government to divest itself of some of this western land. What I am arguing is, "Don't be surprised if there aren't as many takers as you might expect". Civilization has always required a critical mass of people and resources. Where either is scarce, you don't get large population centers because the land simply won't sustain large communities.

This is not to say the government needs all this land. I'm just saying that we shouldn't be too quick to attribute to malice what can also be explained by natural causes.

Posted by: Cassandra at April 17, 2014 04:24 PM

A great many people in Western states resent the overbearing and excessive Federal Gov't land ownership.

MikeD is correct that the Feds behaved differently after the Civil War, which had little interest for me growing up in Seattle; it was all horrifying; the casualties, slavery, all of it.
The reasons given for the difference in retained direct Fed land ownership between the Louisiana Purchase, The Mexican war treaty, acquisition of the Oregon Territory, and the purchase of Alaska are rational1zations . . . the Feds should divest most of it's non-Park land back to each state.

It is appalling and unjust that the Fed gov't owns most of many Western states, which deprives them of their primary revenue source of property taxes.

. . . and if you think I'm worked up about this issue, spend a few weeks in Alaska . . .

Best Regards,

Posted by: CAPT Mike at April 17, 2014 05:05 PM

I don't know anyone who thinks the people are the enemy of (or exist to serve) the State.

Harry Reid would like to disagree with you regarding the Koch Brothers.

The IRS would like to disagree with you regarding all those [strike]turbulent priests[/strike] conservative 501(c)4s.

Posted by: Yu-Ain Gonnano at April 17, 2014 05:34 PM

"Don't be surprised if there aren't as many takers as you might expect"

I don't doubt that quite a lot of land wouldn't have any takers. But all the problems seem to come out of the small X% that most likely would.

If that land truly is so unhospitable, there's likely no one there to complain. And if there is, selling off a 100 acres or so to that lonely hermit in the middle of nowhere seems a small price to oil a squeeky wheel.

But dammit there's a tortoise at stake!!!111eleventy!1

Posted by: Yu-Ain Gonnano at April 17, 2014 05:46 PM

As I see it, the desert was considered essentially valueless long ago. It no longer is, and if it's very valuable, I'd prefer to see it either in private hands or administered in such a way as not to shock either our consciences or our good sense.

Posted by: Texan99 at April 17, 2014 05:59 PM

I doubt the land is valueless, Tex.

I just think it is unlikely it will end up like what we see back East or in the areas with water out West.

My forebears on my Dad's side were miners. They settled out west and that's where he was born. Most of the extended family's still out there.

Don't get me started on the tortoise thing, YAG. When the Unit was in 29 Stumps, they had to jump through so many hoops to be able to have a firex. It was ridiculous.

If it wasn't tortoii, it was Indian artifacts.

Posted by: Cassandra at April 17, 2014 07:12 PM

No, it won't be green farmland in the foreseeable future. But the point is, if it's worthless, then I don't mind that it languishes in federal hands indefinitely. If it's valuable enough that the feds can jack with the people who want to use it, or that they can hand it out as plums, then I want it out of their hands. Enough is enough.

Posted by: Texan99 at April 17, 2014 07:25 PM

"If it wasn't tortoii,..."

Is that something done in the desert?
Good thing there are plenty of jackalopes around...

Posted by: Evil Twin at April 17, 2014 08:22 PM

The Constitution is the supreme law of the land. Period. It limits federal (and state) power, it guarantees certain fundamental human rights (and no, Internet access is NOT one of those rights) that are so basic - so necessary - that they require the federal government to be able to override state governments.

I quite literally have had someone tell me that they didn't understand why we should care what a 250 year old document says. And not in a joking manner. Ask a pro-choicer some time about 'settled law' with regards to Roe v. Wade and you're likely to hear how it's all but the Word delivered from On High. Then ask them about it as it pertains to the Heller case (establishing once and for all that handgun ownership IS an individual right protected by the 2nd Amendment) and suddenly there's a lot of hemming and hawing. Not that there aren't those on the Right who will do similar things. But what I'm getting at is that absolutely the Constitution SHOULD be the supreme law of the land, but in execution, parts of it are routinely ignored or twisted to mean the exact opposite of its clear meaning (TRY and make sense of "not buying something sold nationally is engaging in interstate commerce", I dare you).

I'm always shocked to see conservatives arguing that state power is good and benevolent but federal power is evil and wrong/bad. It's not that simple. There are certain things only the fedgov can do.

My argument isn't that State power is good while Federal power is evil. I merely take the position that the government closest to the People is the least evil. State power is easily abused as well, and I would prefer most of it delegated to the local level. And even local government can be onerous (see Kelo v. New London) and should be in the hands of the People directly as much as possible. Yes, there are some things that can only be done at the national level. Negotiating treaties, building and manning navies, regulating commerce that occurs between States (and by this I mean ACTUAL interstate commerce; not "failing to engage in it" or "goods that are gathered, manufactured, distributed and sold completely within one State MIGHT be bought by someone out of State" as our Federal government has successfully argued in Federal court... which OUGHT to be a conflict of interest, one would think) and all the other roles that were specifically given to it by the Constitution and Bill of Rights. And yet, here we are. Overreach by the Federal government, enabled by the Federal courts (appointed directly by the Federal government and not answerable to the States or the People), and yet we're surprised that the vast power they've assumed has corrupted them to the point that they're able to (again, I want to stress successfully) argue that the act of NOT purchasing something somehow is "engaging in interstate commerce". The very idea is laughable, but what do you expect when the fox is put in charge of guarding the henhouse?

Pretty much every rogue cop story we see is an abuse of *state* power. State and local governments have vast powers that we should be wary of, and personally I'm glad that the Constitution says slavery will not be tolerated even if some states want it.

State and local governments HAD vast power. I submit that the 13th, 14th, and 15th Amendments were very good things that needed to be added. The simple idea that the States cannot deny Constitutionally protected rights is a very good one. If it's important enough to keep the Federal government from denying that Right to the people, then it's important enough to prevent the States from doing so. I fully support that. What I do NOT support is the Federal government using it as a hammer to restrict the States in violation of the 10th Amendment. Powers not expressly granted to the Federal government should be the SOLE purview of the States and the People. And yet, all it takes these days is the Federal government to assert that it has a power, then claim that the States therefore do not have any say in the matter. It is my belief that all government is evil in nature (power corrupts, etc), but it is a necessary evil. And the best way to limit the damage it causes by necessity is to have checks and balances not just at each level, but between each level (see 13th, 14th, and 15th Amendments for positive examples). And furthermore, I'd try to keep power at the lowest level possible. There is absolutely no reason that we need a national law providing what schools across the country must teach.

I'll even go further and give a concrete example, national environmental regulation. My wife was an environmental engineer. In one cleanup site, the Federal regulators were SHOCKED at the aluminum levels in a particular soil sample (well over the limit provided for by national standards), demanded that the "contaminated soil" be removed and disposed of, and replaced with "uncontaminated soil". Imagine their surprise when they were informed that the soil sample in question was NOT from a contaminated site, but was in fact the background "control" sample. That's right, the soil present in the entire area was over "national levels" of allowed aluminum. Why? Naturally higher, nothing more sinister than that. To replace that soil with "uncontaminated soil" would have involved digging up the top foot or so of South Carolina and dumping it somewhere, to replace it with soil from some other region. That is the destructive nature of "national standards".

When you go out into the desert out west, none of those conditions are present. The terrain is harsh (100 or 110 degree days, no water anywhere, mountains and barren land). I love the high desert but you couldn't pay me to live in the low desert.

I'd accept this argument if all the states where the Federal government owned 1/2 to 4/5ths of all the land were deserts, but they're not. Oregon and Washington State are actual rainforests. Wyoming, and Montana are virtually indistinguishable (terrain wise) from North Dakota. California is all over the place, and yet, you cannot convince me that nearly 50% of it is less desirable than West Texas or Oklahoma (1.9 and 3.6% Federally owned each). Desirability MIGHT explain Nevada, Arizona, and New Mexico, but not the Pacific Northwest. And yet, they are massively disproportionate in Federal land ownership as well.

I am not at all hostile to asking the government to divest itself of some of this western land. What I am arguing is, "Don't be surprised if there aren't as many takers as you might expect". Civilization has always required a critical mass of people and resources. Where either is scarce, you don't get large population centers because the land simply won't sustain large communities.

I can all but guarantee that if the Federal government offered land in those states for sale even at a profit over what it cost them to originally purchase (with even some extra thrown in for general purposes), much, if not MOST of the lands would be snapped up. If not by individuals, then by corporations. The States themselves should probably be given ownership of what cannot be sold (barring some active Federal use, such as military posts). There is quite literally no reason for such vast swathes of land to be held directly by the Federal government. You don't think the States would be happy to take that land?

And that's what rubs me so raw even on the Nevada bit. They were offered plots of lands in each township for schools. Instead the State said, "well, instead of giving us those scattered plots, how about if you give us the most desirable areas." What OUGHT to have happened (and what I suspect happened with most of the Louisiana Purchase) was the Federal government should have said "we need these few scattered plots of land, here is everything else." The difference was in the perceived relationship between the States and the Federal government. The States were seen as being incapable (or not to be trusted with) administering land whereas before the assumption was that they were the ones MOST capable (or to be trusted with) administering land.

Posted by: MikeD at April 18, 2014 09:21 AM

I'm going to retain my opinion that there is a crucial distinction between public property and private property. I object to the idea that the Federal government has the kind of ownership rights to this land that we are obligated to defend in the way that we would defend the rights of the owners of privately owned land.

It sounds good to say that the Federal government bought this land from Mexico, and then created states from it, etc. But this obscures two major problems:

1) First, why was Mexico willing to sell the land? It turns out, it wasn't. The Mexican government was forced at gunpoint to sell the land by the Federal troops that defeated them in the Mexican War. The Mexican government had rejected a purchase price of $25 Million right before the war. With Federal troops in their capital, they "accepted" $15 Million.

Property acquired in this way is not legitimately acquired. The Federal government has no moral right to the land.

2) The Mexican government wasn't the only one with a claim to the land in any event. Their claim was of the same specious type as the Federal claim that followed it. The people who really had a right to the land were the Indians who lived and worked on it.

Now, when I said this at the Hall, you (Cass) responded by saying that Indians didn't have a concept of property. I suppose that means it isn't possible to steal from them?

Yet we have a concept of property, and in fact it is John Locke's concept. As he explains in the Second Treatise on Government, property is naturally acquired by those who use it to live and work it themselves. Thus, our government -- being founded on this ideal of property rights -- ought to have recognized that the Indians had a natural right to the property. Instead, it forced them to accept treaties accepting Federal rights, and then violated those treaties.

Thus, for these two reasons, the Federal claim to the land is invalid. They have no moral right to any of that land.

Moreover, Locke went on to add that the one way in which a property owner could involuntarily alienate themselves from their right to their property was to both (a) claim more than they could work, and also (b) not work it, while others were in need. Even if the Federal government had some natural right to this land -- they certainly can have no moral or legal right, having stolen it at gunpoint from both the previous legal owner and the previous moral owners -- they would have abrogated it. The natural property right inheres in those who have worked the land for a hundred years.

Therefore, the Federal government is wholly in the wrong. The cattlemen are not wholly in the right, but they at least have a natural right here. That is my considered opinion.

Posted by: Grim at April 18, 2014 07:52 PM

Fair Disclosure: I lease land from the BLM and the USFS as do a number of friends of mine. Let me say first this is a Gordian Knot of immense dimensions.

Why did the federal government reserve the land? Sheer demographics, there were simply not enough people to populate the land. Some sort of trust needed to be established. The right of the US govt. to take or buy this land is a separate knot.

I won't quibble about the creation of National Parks, vast numbers of US citizens and foreign tourists get equal access to them. Preserving some wilderness, and experiencing it, is good for the soul IMO.

As to the main question, the rancher. The best way to lose your permitted lease is not pay the lease. If you pay the lease, for all intents and purposes it's perpetual. To the Desert Tortoise question. Someone is tossing horse apples. Grazing animals are not considered a particular threal to Tortoises unless there are an excessive number of animals grazing.

As to an unresponsive government cough, cough, Bull... In all my experience in land use of federally controlled lands most of the public comment sessions go virtually unattended. I would suggest it's more of an unresponsive citizenry. I have been to many public comment sessions where there might be as many as three citizens in attendance. My arguments have always been listened to and sometimes adopted.

It's part of the whole package of the lease, you are supposed to be a good steward which includes showing up.

Posted by: Allen at April 18, 2014 08:06 PM

Property rights are as thorny a problem as we're likely to find in legal and political philosophy. There's nothing magic about the item or the tract of land. Property law is about the latitude we give each other in how to use the material things in our midst. Our own property system assumes that things will work out best if there's a clear rule specifying that whoever is in charge of X property will get the benefit of his work to improve X property. Nevertheless, we place limits on what people can do with "their" property to the extent it has an impact on their neighbors, and we don't always decide that a particular piece of property will yield the most benefit if a single person controls it in perpetuity.

There are good reasons for some property to be controlled by the government, even by the distant federal government. Nevertheless, I'm not persuaded that those reasons still prevail in most of the Western states, including Nevada, even assuming that they prevailed at one time. Nor am I persuaded that the land in question should be used at the whim of Mr. Bundy, whatever his family history may be, or at the whim of Mr. Reid's newest cronies, for that matter.

What I am persuaded of is that the feds have screwed up their response to Mr. Bundy by the numbers, and that Mr. Bundy has a lot to answer for, himself. The question whether those lands should be under state or federal government control is an interesting one, but not one that I'd be willing to rely on to aim a loaded rifle at a living, breathing federal officer. There's a very long list of grievances that might spur me to all-out rebellion before I got to this one.

In spite of all that, of course, I can't help being encouraged by the willingness of a lot of people to show up, armed, to protest what they perceive as government overreach. Now I hope they'll turn all that self-reliant energy to useful channels, including disentangling their affairs from federal largesse and voting for small-government candidates instead of the guy who brings home the most bacon.

Posted by: Texan99 at April 19, 2014 10:03 AM

Grazing animals are not considered a particular threal to Tortoises unless there are an excessive number of animals grazing

I think that is the issue in this particular case. The number of grazing animals was not an issue until the tortoise was put on the endangered species list and suddenly the number of cows were excessive. Bundy had been paying the lease that he believed would be honored in perpituity and now he was being kicked off.

Two court decisions have apparently said that's legal, but I can understand the anger here.

I have a mortgage contract which basically says that as long as I pay the mortgage I keep the house. If the bank came to me tomorrow and said "We found an arrowhead in your backyard, you have to keep paying the mortgage, but your house can't be occupied by more than 2 people at a time" I think I'd be pretty hopping mad too. Even if two court cases said it was legal.

Posted by: Yu-Ain Gonnano at April 21, 2014 04:24 PM

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