The Gardner Case and Bundy’s Relitigation

BundyThe Bundy flap isn’t the first time someone has tried, and failed, to avoid grazing fees and restrictions on Nevada public lands.  On February 25, 1997 a decision was handed down in U.S. vs. Gardner (107F 3d 1314) which upheld the federal jurisdiction over lands in the Humboldt National Forest. [Dkos]

In 1988 the Forest Service issued a ten year permit to the Gardners to graze a portion of the Humboldt National Forest.  In August 1992 a fire burned over 2,000 acres of the Mica C & H and Mica Creek Addition Allotments.  The Forest Service and the Nevada Department of Wildlife reseeded the burned area and advised the Gardners that the land could not be grazed for two years, in order to let the renewed vegetation take hold. The Gardners didn’t graze any cattle on the allotments in question during 1993.

The controversy began in 1994:

“On May 13, 1994, Gardners sent a letter to the Forest Service stating that they intended to resume grazing on the burned area within 3 days. On May 18, 1994, the Forest Service observed Gardners’ livestock grazing on the burned area. On May 19, 1994, the Forest Service hand-delivered a letter to Gardners advising that they were violating the terms and conditions of the permit by grazing cattle in the burned area, and requiring that the livestock be removed from the burned area by May 22, 1994. Gardners did not remove the livestock.” [Scholar]

In view of the refusal to remove the livestock from the areas in question, the Forest Service revoked the grazing permit. The Gardners refused to remove the livestock, and racked up $$4,473.72 in penalties, which they also refused to pay.  They never contended that they didn’t graze the land improperly, nor did they contend they didn’t owe the associated fees… They did assert:

“… that the unappropriated lands in the state of Nevada, of which the Humboldt National Forest is a part, are not territory or other property belonging to the United States, and that therefore the Forest Service does not have jurisdiction to regulate use of the forest land or to levy fees for unauthorized activities within it.” [Scholar]

And now we have to go back to the strange interpretations of the Treaty of Guadalupe Hildago.   The Gardners asserted that public lands acquired from Mexico could only be held in trust for the states because a previous case [Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845)] determined that lands ceded to the U.S. from Virginia and Georgia to pay off Revolutionary War debts was held in trust for future states.  The problem, the court explained to the Gardners:

“Before becoming a state, however, Nevada had no independent claim to sovereignty, unlike the original thirteen states.   Therefore, the same reasoning is not applicable to this case, in which the federal government was the initial owner of the land from which the state of Nevada was later carved. Thus, as the United States has held title to the unappropriated public lands in Nevada since Mexico ceded the land to the United States in 1848, the land is the property of the United States.”  [CaseLaw] (emphasis added)

The decision went a bit further, incorporating the ‘property clause’ into the argument:

“Thus, as the United States has held title to the unappropriated public lands in Nevada since Mexico ceded the land to the United States in 1848, the land is the property of the United States.   The United States Constitution provides in the Property Clause that Congress has the power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”  U.S. Const. art. IV, § 3, cl. 2.   The Supreme Court has consistently recognized the expansiveness of this power, stating that “[t]he power over the public land thus entrusted to Congress is without limitations.” [CaseLaw]

Now we’re back to Pollard’s Lessee again.  Having dispensed with the jurisdictional issue, the court reviewed the Gardner’s contention that they didn’t have to follow federal rules because of the “Equal Footing Rule,” i.e. all new states come into the union on an equal footing, but Nevada being some 80% federal land isn’t therefore on an ‘equal footing’ with the other states.  The court didn’t agree.

The problem with using Pollard as a precedent in this case is that Pollard concerns water (shores  and land beneath navigable waters) and the Gardners were claiming that what applied to rivers and streams applied to dry land.   Decisions in Scott (1913) and Texas v. Louisiana (1973) both determined that the ‘equal footing’ concept did not “reserve title to fast dry lands to the states.”

The next argument the Gardners put forth concerned the ‘disclaimer’ clause in the Nevada Constitution.

 ”When Congress invited Nevada to join the Union in 1864, it mandated that the Nevada constitutional convention pass an act promising that Nevada would “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States․”   Nevada Statehood Act of March 21, 1864, 13 Stat. 30, 31 § 4.   The state constitutional convention did so.   Ordinance of the Nevada Constitution.5

Gardners claim that this clause is invalid and unconstitutional as an attempt to divest Nevada of its title to the unappropriated lands within its boundaries. [CaseLaw]

This argument fell apart quickly when the court noted that Nevada never had any title to the land in the first place.  (see above)

Enter the 10th’er Argument.  “Gardners argue that federal ownership of the public lands in Nevada is unconstitutional under the Tenth Amendment.   Such ownership, they argue, invades “core state powers reserved to Nevada,” such as the police power.”  [CaseLaw]  They lost this round as well, the decision said:

“Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. [citations omitted] And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.”

As inconvenient as Article IV, paragraph 2 may be for the advocates of anarchy, the Supremacy Clause remains in place:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

In short, what Cliven Bundy attempts is little more than the relitigation of the Gardner Case.  He tried the “jurisdiction” argument, the “equal footing argument,” and  the “disclaimer clause” argument, and they all failed — again. [Bundy Notice 2013 pdf]

If he can’t relitigate the Gardner Case, then perhaps Bundy believes he has a case similar to the one in Estate of E. Wayne Hage v. U.S?  This is problematic because the Hage Case involved both grazing permits and water rights, further it also included disputes about improvements made to the property.

“The Hages’ regulatory takings claim and claim for compensation pursuant to 43 U.S.C. § 1752(g) are not ripe, and we therefore vacate the Claims Court’s award of damages. To the extent the Hages’ claim for a physical taking relies on fences constructed in 1981-1982, this claim is un-timely. To the extent the physical takings claim relies on fences constructed in 1988-1990, we reverse because there is no evidence that water was taken that the Hages could have put to beneficial use. Finally, we affirm the Claims Court’s holding that the Hages are not entitled to pre-judgment interest for any rangeimprovements award because the Hages failed to identify a cognizable property interest. We remand for further proceedings consistent with this opinion.” [BlbLaw]

However much the ultraconservative media and pundits may like to speak of  this case as an exemplar of a “win” against the Forest Service, the issues were far narrower and the stance taken by the Bundy Brigands has far more points of comparison with the Gardner Case.

Not to put too fine a point to it, but all that remains to Bundy’s Brigands are long discredited right wing talking points, conspiracy theories, highly dubious Constitutional theorizing, and the bluster of the 2nd Amendment Solutions Crowd.

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