Nevada Legislature: Cliven Bundy helps renew old debate, but will things change?
April 6, 2015
When rancher Cliven Bundy arrived at the Nevada Capitol with hundreds of supporters recently to urge legislators to pass a bill demanding state control of federally owned lands within Nevada's borders, it renewed a fight over grazing rights that turned into an armed standoff last year. But it also represented the latest push in a decades-old tug-of-war that surfaces regularly in political debates and policy discussions.
This year, federal lands bills are being considered in 11 Western states, including Nevada. Here are some questions and answers about the debate:
WHAT'S IN DISPUTE?
Several federal agencies, including the Bureau of Land Management, administer land within state borders that isn't owned by private or other public entities. About 4 percent of land east of the State of Colorado is managed by federal agencies, while that figure is much higher in the West and is more than 80 percent in Nevada.
Much of this acreage is wilderness, and agencies including the BLM lease some of it for grazing and oil and gas development.
WHAT'S BEING PROPOSED?
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Public lands bills in Western states run the gamut from measures that would study the cost of the state managing federal land, to measures asking or demanding Congress turn over property.
Nevada's measure is the most far-reaching and would lay claim to almost all federally managed public lands and water rights in the state.
WHY DO SUCH BILLS COME UP SO REGULARLY?
Part of it has to do with politically conservative values that prefer local control and resist federal overreach. It's also rooted in the belief that federal authorities are standing in the way of ranchers and developers who say they can use the land to create jobs and boost the economy.
WHO WANTS FEDERAL CONTROL MAINTAINED?
Conservationists worry that states would sell the land to oil and gas companies and mineral exploration firms, cutting off public access and allowing iconic landscapes to be destroyed.
WHY HAVEN'T THE EFFORTS SUCCEEDED?
The bills are largely considered to be unconstitutional because they put state authority ahead of federal law.
But sometimes they do succeed, even if the effect is muted. In Utah, for example, legislators passed a law in 2012 demanding that the federal government turn over about 31 million acres of public land by the start of this year. The deadline for the transfer passed with no action, however, in a move predicted by both critics and supporters.
IS IT REALLY THAT SIMPLE?
As a condition of joining the union, some states in the West agreed to give control of huge chunks of land to the federal government and incorporate "disclaimer clauses" in their constitutions.
Today, the federal government is like any other property owner, and states don't have the right to demand acreage any more than a renter has the right to demand control of an apartment, experts say.
To describe the bill moving through the Nevada Legislature, professor Ian Bartrum of the Boyd School of Law at the University of Nevada, Las Vegas said, "If there's a word beyond absurd, I would use that word."
He pointed to three clauses in the U.S. Constitution that pre-empt state-led efforts to claim land: The Supremacy Clause says federal law trumps state law; The Property Clause gives the federal government authority to own land; and the Enclave Clause provides another source of authority for federal land ownership.
THEN WHY, AGAIN, DOES THIS KEEP COMING UP?
Washington state Republican Rep. Matt Shea has become a prominent voice in the fight for local authority over federal land, and says there are constitutional grounds for such a transfer. He says the Equal Footing doctrine in the Constitution means new states and older states are equals, and argues that unless Western states have more control over the lands within their borders that's not the case.
Other proponents of a transfer concede the state doesn't have power to carry it out. But they believe a groundswell of state-level action and cooperation among states can convince Congress to give over land.
"The only way we can do this is with numbers and power," said Republican Nevada Assemblyman John Ellison.
ARE THERE OTHER STRATEGIES?
Erin Ryan, a professor and natural resources law expert at Lewis and Clark Law School in Oregon, said amending the U.S. Constitution is theoretically a possibility, but too rigorous to be practical.
The most likely path for a potential handover would be through an act of Congress, Ryan said. But she said there's little appetite for a large-scale transfer, especially among representatives from states outside of the West, because of concerns that the lands would be closed off to the general public and the sentiment that it belongs to a broader population than one state's citizens, she said.
WHAT ABOUT SOMETHING SMALLER?
Smaller-scale, controlled transfers have worked in the past. Ryan cited the example of the Southern Nevada Public Lands Management Act, which became law in 1998 and allowed the BLM to sell land close to Las Vegas. Proceeds benefit Nevada schools and the Southern Nevada Water Authority and pay for parks and conservation projects.
His dispute over about $1 million in grazing fees isn't over, even though federal authorities called off efforts to gather his cattle amid fears of bloodshed.
Bundy is rallying friends around the Nevada lands bill, while the BLM said it's pursuing the case through the legal system.
"Our primary goal remains, as it was a year ago, to resolve this matter safely and according to the rule of the law," the agency said in a statement.