When my ol’ pappy broke the two-by-four across the muzzle of our stubborn 2,000-pound black Angus bull, he explained: “First, son, you have to get his attention.”
Perhaps that is one way to look at Assembly Bill 408, which would prohibit the federal government from owning or regulating land and water rights in the state of Nevada without legislative approval.
Looming over debate on the bill is an opinion from the Legislative Counsel Bureau, essentially the lawmakers’ lawyer, that AB408, under current case law, is unconstitutional. And so it is.
But case law can change. At one time case law stated that “separate but equal” was constitutional and internment of American citizens of Japanese ancestry was constitutional.
Perhaps it is time to get the federal government’s attention and make its lawyers defend its 150-year control of nearly 87 percent of the land in Nevada.
The Counsel Bureau notes the courts over the years have upheld the federal government’s hegemony over the West.
One of those cases out of the liberal 9th U.S. Circuit Court of Appeals in 1997 ruled against rancher Cliff Gardner of Ruby Valley, who contended the state and not the federal government should have sovereignty over Nevada land. Gardner testified in favor of AB408.
The 9th Circuit ruled that the Equal Footing Doctrine, under which all states admitted to the Union are to have equal footing with the original 13 states, does not mean what it clearly says.
“The Equal Footing Doctrine, then, applies to political rights and sovereignty, not to economic or physical characteristics of the states,” the court ruled.
Surely, equal footing means equal economic opportunity and the equal ability to provide tax revenue, as well as political rights, when you look at the plain meaning of the words.
In 1828 seven states from Illinois to Florida successfully argued that the federal government should release its ownership of vast tracts of public land within their borders, saying: “When these States stipulated not to tax the lands of the United States until they were sold, they rested upon the implied engagement of Congress to cause them to be sold, within a reasonable time. No just equivalent has been given those States for a surrender of an attribute of sovereignty so important to their welfare, and to an equal standing with the original States.”
Today those states have less than 4 percent federal public land holdings, compared to 50 percent across the West.
In fact, the Nevada statehood document includes language saying the state would get “five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …”
That is an implicit promise that the land shall be sold.
The year before the Gardner case the voters of Nevada repealed the 1864 Disclaimer Clause that said the state does “forever disclaim all right and title to the unappropriated public lands lying within said territory …” That was just to assure a clear title, since the land shall be sold.
Nearly 20 years since that ballot initiative, Congress and the courts have failed to act. So much for a right to redress grievances, as guaranteed by the First Amendment.
There is an alternative to AB408 wending its way through the halls of the Legislature. That is Senate Joint Resolution 1. It urges Congress to enact legislation that would allow transferring title to more than 7 million acres of the 58 million acres of federal public lands to the state of Nevada in the manner outlined in a report prepared by the Nevada Land Management Task Force.
Meanwhile, U.S. Rep. Mark Amodei is not waiting for supplications from Carson City. He has introduced a bill called Honor the Nevada Enabling Act of 1864 Act, which calls on Congress to hand over 7.2 million acres to Nevada in a first phase.
The bill states: “The Federal Government promised all new States, in their statehood enabling Act contracts, that it would dispose of federally controlled public lands within the borders of those States,” but it failed to honor the promise.
The bill has been referred to the Committee on Natural Resources, where co-sponsor Rep. Cresent Hardy sits.
While this may be like tapping Congress on the shoulder and asking for the next dance, after 150 years of being a wallflower, perhaps Nevada should also wield a two-by-four.
Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at firstname.lastname@example.org. He also blogs at http://4thst8.wordpress.com/.