Public lands argument not rooted in fact

In a recent article in the High Desert News, Arizona Rep. Raul M. Grijalva stated that the public lands debate in the West was based upon “fairy tales” of the federal government taking land away from states. Rep. Grijalva opined that the “people selling this fantasy know better, and they need to level with the people they represent before the Malheur standoff is repeated.”

For some time, the sellers of this fantasy in Southern Nevada have been the Bundys, who claim the federal government somehow took land away from the people of the state.

Prior to the Nevada presidential caucuses, Republican candidate Ted Cruz repeated this fairy tale, calling for public land in Nevada to be “returned” to Nevada. Other elected officials, in the state legislature and even in Congress, continue to echo these fairy tale narratives about the nature and origin of our public lands.

As a land use lawyer, I know these issues have been well settled in the courts, and know that the basic facts and law are beyond reasonable dispute.

The Bundys have repeatedly lost these arguments in court, but so have ranchers such as Clifford and Bertha Gardner, who challenged federal ownership of the Humboldt National Forest. Nye County and its “sagebrush Rebellion” also lost these very same arguments in court. These court cases all revolve around the same basic sets of simple facts, and all apply the same few laws. These facts do not support the Bundy fairy tale.

Nevada was once part of the sovereign nation of Mexico. In 1848, an American army led by General Winfield Scott defeated the Mexican Army and captured Mexico City, effectively ending the Mexican War.

A formal treaty of peace ended the war. The Treaty of Guadalupe Hidalgo ceded 51 percent of Mexico’s territory to the United States of America, including most of what is now the Southwest (including Nevada).

The United States could acquire vast tracts of land, the U.S. Supreme Court has ruled, under the Property Clause of the U.S. Constitution (Article IV, Section 3). As construed by the courts, this clause gives Congress the power to acquire and hold land and property “without limitation” and conveys the ability for congress to “retain and regulate public lands.”

So, Nevada never owned the land prior to becoming a state. When Nevada become a state in 1865, the state’s constitution contained an express clause recognizing federal ownership of the land. This provision of the Nevada Constitution has been reviewed by courts, and has been universally deemed valid and binding.

Some argue that the Equal Footing Doctrine — the doctrine that “each state shares those attributes essential to its equality in dignity and power with the other states” — required the federal government to turn the public land over to the state of Nevada when it became a state. However, courts in the Bundy cases, the Gardner case and the Nye County case are in unanimous accord that the Equal Footing Doctrine did not so require the land to be transferred.

Rather, the courts have ruled the title to dry land held by the federal government “does not pass to states” upon their creation and admission to the union.

Thus it is fact that once the U.S. acquired the federal land in Nevada from Mexico, it never relinquished ownership of the public lands. It is a fact that Nevada did not acquire the land through statehood and joining the union. It is a fact that the Equal Footing Doctrine did not require the land to be passed to Nevada. It is a fact Courts have ruled that the federal government can own land, and can regulate its own land. And finally, it is a fact, as established in the Nye County litigation of the 1990s, any state laws regarding public land that conflict with federal laws governing that same land are overruled by the Supremacy Clause of the U.S. Constitution.

These facts have largely been ignored by those trying to sell a fairy tale of public lands in the West. In the case of Cliven Bundy, the court has specifically ruled “Bundy has produced no valid law or specific facts raising a genuine issue of fact regarding federal ownership or management of federal lands in Nevada ...”

The Bundy narrative is a fairy tale, and in the words of Rep. Grijalva, the people selling this fantasy need to level with the people they represent.

Paul Larsen is a Las Vegas attorney who specializes in administrative law, including land use.