Tag Archives: BLM

Amodei’s Land Grab

Amodei Privatization Land “Congressman Mark Amodei will give an update to the Elko City Council Tuesday on possible issues that might impact the City and Elko County, according to Assistant City Manager Scott Wilkinson.

Amodei’s topics have not been outlined for the City. However, past subjects have included lands issues and sage grouse.” [EDFP]

If he’s set on discussing land issues, then we might guess he’s off to thread another precarious choice between the Bundyite Bunch and the BLM.  Back in late April, 2014 Representative Amodei was praising the BLM for backing off the confrontation with the Rampant Bundys, recalling his words:

“That is a leadership-type thing where you say, ‘We are getting our butts kicked and we are taking our team off the field and getting out of the stadium,'” Amodei said, according to the Reno Gazette-Journal. “It’s not a win, but probably the right thing to do under the circumstances.” [LVSun]

Two years later Amodei’s tone changed, he didn’t support the Bundys and he definitely didn’t want to be labeled anti-park:

“Amodei, however, said the (1) report attempts to use the Bundy sideshow to score political points rather than take a serious look at important issues such as (2) land access, ecosystem health and local economies.

“They don’t speak for me on anything to do with public lands,” Amodei said of Bundy and his acolytes. (3) “I want it to be about the resources, not about some guy who is or isn’t paying his grazing fees.” [RGJ] (numbering added)

Parse with us now. (1) When faced with a report bearing uncomfortable factual inclusions, such as Amodei’s opposition to funding and maintaining national parks and monuments, deflect the issue to the Bundy Bunch – who want no federal involvement in public land administration (grazing, forests, parks, monuments, …) and announce one’s inclination to talk about substantive land issues.  The 2nd District Representative had an opportunity to vote on the SHARE Act, a privatization proposal in Congress this year, but was absent for the vote.

“Representative Rob Wittman (R-VA) sponsored H.R. 2406, the Sportsmen’s Heritage and Recreational Enhancement (SHARE) Act of 2015, which contains harmful measures undermining the National Environmental Policy Act (NEPA), the Wilderness Act, and other bedrock environmental laws. The bill includes language that could allow the use of motorized vehicles, road construction, and other forms of development within protected wilderness areas, and it blocks input from public stakeholders in National Wildlife Refuge management decisions. This legislation also includes provisions that would weaken the EPA’s ability to regulate toxic lead in ammunition, fishing equipment. Additionally, this bill would undermine international commitments to combat ivory trafficking, thwarts our ability to effectively manage marine resources, and cuts the public out of management decisions impacting hundreds of millions of acres of public lands. On February 26, the House approved H.R. 2406 by a vote of 242-161 (House roll call vote 101). NO IS THE PRO-ENVIRONMENT VOTE.” [LCV] (emphasis added)

(2) Representative Amodei has the big three listed — “land access, ecosystem health, and local economies.” However, in terms of access notice the underlining in the SHARE bill – when management decisions are to be made the PUBLIC is cut out of the process. This raises the question that if we are speaking of public access to public lands and the public is cut out of the management decision process, then whose access are we talking about?  Since the GOP sponsored bill passed the GOP controlled Congress, then it’s reasonable to assume the GOP doesn’t want input from PUBLIC organizations concerning management decisions – leaving the field (literally?) to the mining, logging, privatization, and other commercial interests?

And, if rivers are dredged or fouled, forests are cut down, wildlife is endangered, hunters are denied access, fishing enthusiasts are turned away, then it must be for the sake of the “local economies?” Unfortunately, Representative Amodei’s comments as reported offer no explication of his priorities.

(3) But then, there’s Representative Amodei’s infamous quote: “…we do understand their frustration with increasingly heavy handed federal agencies that continue to violate the rights of hardworking American farmers and ranchers.” [RGJ] Are heavily armed men taking over a federal wildlife refuge and threatening violence just “frustrated?”  So, perhaps it would be logical to infer that Amodei’s heart is with the “frustrated” members of those “local economies” which seek to exploit public resources?

Amodei is quick to cite his support for the National Park Service budget, and his support for the hazardous fuel mitigation efforts on public lands, but part of what got him on the Anti-Park list is explained: “Amodei landed on the list for sponsoring legislation that would give the state control of 7.2 million of the approximately 58 million acres of federally controlled land in Nevada..[RGJ]

It doesn’t take too much imagination to see that cash strapped states (like Nevada) might not eventually want to capitalize on the exploitation of public lands in the state, quite possibly at the expense of small ranching concerns, outdoor sports participants, and wildlife in particular.

A sneak peak might be on display with his bill to place BLM lands in trust with Nevada tribes:

“The House Natural Resources Committee approved the Nevada Native Nations Land Act, H.R. 2733, which Amodei introduced to provide more opportunities for economic development and protection of natural resources in the regions.

“(Wednesday’s) vote puts us one step closer to placing Nevada public lands back into local control — rather than in the hands of Washington bureaucrats,” Amodei said. “My bill carefully balances the unique needs of our Nevada tribal nations with those of local ranchers, land owners and businesses.” [RiponAdv] (emphasis added)

There he goes again, getting land out from under the “Washington Bureaucrats.”  The only salvation in this legislation is that Native Americans, who generally have a better standard of stewardship than the Koch Brothers,  are the ones holding the lands in trust.  We might also safely conclude that this “one step” is the first of many in which Representative Amodei seeks to place Nevada public lands under local control.

From local it’s one more step to private.

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Filed under Amodei, Interior Department, koch brothers, National Parks, Native Americans, Nevada politics, public lands, Reservations, Rural Nevada

The Manufactured Martyrs: Nevada’s Bundyland Bunch

Bundy 2

There are specious arguments, and then there are those which are just downright hysterical. Hysterically funny or screaming tantrums hysterical;  the defense of the Bundy Bunch looks to fit into both those categories.

Cliven Bundy wants to be released from Federal custody because the government is holding him as a Political Prisoner?  At least according to attorney Joel Hansen:

“The government seems to be afraid that it might lose in a jury trial, so it wants to keep him in prison, in solitary confinement, as long as it can because he, like Nelson Mandela, is a political prisoner,” Hansen wrote. “There is nothing in the U.S. Constitution allowing the federal government to hold political prisoners without a trial. Nothing.” [LVRJ]

For those unfamiliar with the right wing of Nevada’s right wing politics, Joel Hansen is part of the Hansen Family Party, aka the Independent American Party which boasts 70,323 registered voters in Nevada, making it the third largest party in the state. The numbers sound impressive until it’s noted that there are 585,890 registered Democrats and 493,612 registered Republicans; and, 295,319 registered as non-partisan. [NV SoS]  As recently as 2002 the Hansen family was the heart of the IAP in Nevada, and members were running for all manner of offices – some inviting controversy with then Secretary of State Dean Heller by not filing campaign financial reports with his office. [LVSun]

So, where does Joel Hansen find the justification for comparing failing rancher Cliven Bundy with international hero Mandela?  We can start with the IAP Platform:

“We believe that to maintain freedom, our political institutions must be founded upon faith in God and upon moral laws and principles embodied in the Declaration of Independence, the Constitution for the United States, the Bill of Rights, and the Holy Scriptures.  We believe that the function of government is to protect life, liberty, property, and the fundamental and God-given rights of the people, and that anything more than this is usurpation and oppression.” [IAP

And they do mean Anything, including the management of federal land and properties.

We oppose intrusion of the federal government in areas that rightfully belong to the states.  We favor abolishing federal control of all lands, except for necessary forts, military bases, post offices, etc., as enumerated in, but limited by, the Constitution.  We support the return to the states of all lands unconstitutionally seized, acquired or controlled by the federal government (10th Amendment), and those taken unconstitutionally as “required” for that state to join the Union. [IAP]

Indeed, manufacturing martyrs requires believing that federal management of federal facilities, and federal lands, constitutes “usurpation and oppression.”

Further, the Hansen-Bundy philosophy requires looping into the realm of a fantasy in which the armed resistance to BLM operations, and the armed takeover of a federal wildlife refuge meets the definition of a “peaceful protest.”  Additionally, it’s still a peaceful protest even if it was originally estimated to cost $3.3 million to clean up the mess made at the Malheur Wildlife Refuge, and then the estimate increased to approximately $6 million by March 23, 2016. [OregonLive]  Evidently, abandoned homes, compromised bank accounts, and death threats to workers at the Malheur Refuge were part of a “peaceful protest?” [OregonLive]

Cliven Bundy’s problems, however, stem not from the Malheur assault and occupation – that bundle falls to his offspring — but from his response to BLM attempts to enforce federal regulations on lands it is tasked to manage near Bunkerville, NV.

“Bundy faces 16 felony counts, including extortion, obstruction of justice, conspiracy to commit an offense against the United States, conspiracy to impede or injure a federal officer, assault on a federal officer, threatening a federal law enforcement officer and using and carrying a firearm in a crime of violence.

Bundy and 18 others — including four of his sons, Ammon, Ryan, Melvyn and David — were charged in a new federal indictment in Las Vegas last week in connection with the April 12, 2014, Bunkerville showdown.” [LVRJ]

Bundy Armed

Photos from the Bunkerville “peaceful protest” don’t seem to argue for an interpretation of a  non-violent approach to discussing issues of cattle operations with the Bureau of Land Management.

 

Hansen and his client have a bit of a problem trying to turn the actions at Bunkerville into Bunker Hill.  Either the demonstrations at the site were peaceful, and none of the armed gunmen actually intended to fire their weapons, or it was a exemplar of armed resistance to the Federal oppressors and usurpers – at which time it’s no longer a “peaceful protest,” and that part about “obstruction of justice,” and “threatening law enforcement officers” is  both relevant and provable.

Hansen: “Does Mr. Bundy have the right to raise a constitutional question about the legality of the high-handed tactics of the BLM?” Hansen asked in his court papers. “Of course he does — and particularly by making statements about the actions of the BLM and by the exercise of people’s First Amendment right to peacefully assemble and the people’s Second Amendment right to keep and bear arms.” [LVRJ]

By this logic, if one were to show up at a BLM office, armed with a semi-automatic rifle, fully loaded, and pointed at the personnel inside, this would be “making a statement?” Exercising freedom of speech? And, just showing support for the 2nd Amendment?  This ought to explain fully and quickly precisely how the sons decided that taking over a wildlife refuge was a “good idea.”   It goes nowhere toward explaining how attorney and IAP pillar Joel Hansen is going to turn the muggers into martyrs.

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The Bundy Boys Join the Circus

AB 408

Remember the Bundy Boys?  Wonkette hasn’t forgotten the Fiore Forays into governmental mismanagement, nor have too many other people.  Now, the flags are flying again, for Freedumb!, in the form of AB 408, a singularly silly bill put forth by the usual group of Tea Partying Fanatics: Assemblywomen Fiore, Dooling, Shelton, Titus, and Seaman. Yes, it’s Ladies’ Day for AB 408, with some fellows tossed in as co-sponsors.  The ladies would like to kick the Feds out of Nevada:

“AN ACT relating to public lands; prohibiting the Federal Government from owning or regulating certain public lands or the right to use public waters; requiring the State Land Registrar to adopt regulations that provide for the appropriation and registration of grazing, logging, mineral development or other beneficial use rights on public lands; requiring the State Land Registrar to sell permits for grazing, logging, mineral development or other beneficial uses on public lands for which such rights are not registered and appropriated; requiring the board of county commissioners of each county to impose a tax on profits from the beneficial use of public lands;…”

Translation: Any rancher who doesn’t want to pay grazing fees for the use of public lands doesn’t have to.  And, we can go one step further – any mining company or logging enterprise can have the State Land Registrar sell off Nevada’s minerals and timber resources at will.  It’s privatization, as they say, on steroids.

What the Tea Bag Biddies seem to have forgotten is that there are other people using those lands too – not just the likes of Cliven “I want to tell you one more thing I know about The Negro” Bundy – and they aren’t hikers and tree huggers, they’re other ranchers.   If the Bundy ilk are allowed to over-graze range lands the land isn’t just Bundy’s problem, it becomes a problem for other ranching operations in the area which might want to use the land eventually.  This isn’t the only thing the Tea Bag Biddies seem to have overlooked.

There is more to BLM land management operations than protecting wildlife, there’s the part wherein the BLM is involved with wildland fire fighting, fuel mitigation, and related issues; combined with programs to manage energy resources, communication right of way and access, and hunting and fishing access.  Then, there’s that pesky bit of Constitutional History, in the act admitting Nevada into statehood:

“Third. That the people inhabiting said territory do agree and declare, that they 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; …..”

So, the terms of AB 408 are ultimately selfish, deliberately narrow, and most probably unconstitutional – and Ammon Bundy, litigant in a relatively new phony lawsuit against the Feds, is gathering support from the Tea Bag Biddies in the Legislature. [LTN]  And, they’ll be hoping for some company. Company who share the Bundy fictional version of the country:

“The natural resources of America are being stolen from the people and claimed by the federal government. Everything we eat, wear, live in, use and so on comes from the earth. If we lose access to the land and natural resources we become beggars to those who control access. Without doubt this is the greatest immediate threat to the individual person and people as a whole. More lives, liberties and property can be taken under this threat than any other we see.”  [RReport]

No statement could make it more abundantly evident that the Bundy Brigade sees itself as separate from the other 320,000,000 people in this country.  For all the blathering about Constitutional-ism, the Brigade appears to have forgotten the first words of the hallowed document: We the people of the United States, on Order to form a more perfect Union…”  We the people form the government. Not “we the Bundys.”  A rough translation of Bundy-ism might be: What’s mine is mine and what’s yours is mine too.

And lest we forget, it was this same general philosophy which attracted support from the two Bundy-ites who killed Officers Alyn Beck and Igor Soldo, in Las Vegas, NV in June 2014. 

The bill will get its hearing, and should get nothing more. 

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Filed under Constitution, Hate Crimes, Interior Department, Nevada, Nevada legislature, Nevada politics, public lands, Rural Nevada

Bits and Pieces

Jig Saw PuzzleOne of those days in which a full bore topic for a post doesn’t come to mind, but there are bits and pieces which might be of interest:

** Here comes the Money.  Ralston Reports: Uncle Sheldon & Associates are bestowing funds to Niger Innis in his primary against “not conservative enough” Cresent Hardy. Watch the New America PAC NV for future injections of cash into right wing causes.  The New America PAC would like for folks to rush over to their Facebook page, watch the commercial, and then donate to get it on the air. This would be the same Facebook page which admonishes us that because “new” Benghazi e-mails have been released we “must impeach Obama immediately.” Yawn.

** Also connected to this endeavor, we find one Dan Blacker, of DB Capitol Strategies, who advertises his role in Carey vs. FEC.  To make a long story short — the case, and its decision, illustrate the old “money = speech” argument, the legalese is as follows:

“On August 19, 2011, the court issued a Stipulated Order and Consent Judgment in which the FEC agreed that it would not enforce 2 U.S.C. §§441a(a)(1)(C) and 441a(a)(3) against Plaintiffs with regard to contributions NDPAC receives to make independent expenditures, as long as NDPAC maintains separate bank accounts 1) to receive such contributions for independent expenditures, and 2) to receive source-and amount-limited contributions for the purpose of making candidate contributions. Further, each account must pay a percentage of administrative expenses that closely corresponds to the percentage of activity for that account, and must comply with the applicable limits for the contributions it receives for the purpose of making candidate contributions.” [FEC]

Here’s where the fun begins, since the decision in Carey allows more money to flow serenely from donors to multi-candidate committees, the DB Capitol Strategies lobby shop spawned its very own 501(c)3:

“DB Capitol Strategies is pleased to announce our support for the launch of the Coolidge-Reagan Foundation, a 501(c)(3) organization focused on education, advocacy, and litigation in furtherance of political speech.”  [DBCS]

Now, what could “litigation in furtherance of political speech” be?  How about more court cases challenging campaign finance laws? With the intent to allow ever more money to flow from donors to multi-candidate committees?  This would certainly “limit government” — it would limit it to those who can afford to Pay for Play.  What a lovely, grass roots, down home, sentiment?

** If we can’t have Sharron Angle, at least we have Sue “Chicken Swapping” Lowden, and her race for the Lt. Governor’s seat. [LVRJ] Lowden is enthusiastically opposing “Obamacare.” Settled law. Game Over. However, should she secure the candidacy she’s opened herself up to related charges from prospective opponents.  The question might be asked, “Do you think people being provided with Medicaid assistance for health related issues should have to swap chickens with local physicians for treatment?”  Or, “What are the implications for chicken production in Nevada since Medicaid has been expanded?”

** By the way, those seeking information about the candidates should click over to the Secretary of State’s page load of them.

** From the good news department: “BLM Chief – Lawbreakers in Bundy Confrontation Will Be Held Accountable,” [LVRJ] The core:

“Kornze’s comments on National Public Radio were his first since directing BLM wranglers and armed agents on April 12 to suspend the operation to seize Bundy cattle in the Gold Butte area of Clark County. They were consistent with written statements the BLM has issued since the confrontation that day with Bundy and armed supporters.  Now, Kornze said, “we are going to work through the legal system.” He said his comments had to be limited because an investigation is underway. Clark

County Sheriff Doug Gillespie confirmed last week the FBI has opened a criminal probe of alleged threats and assaults on law enforcement officers at the roundup.”

Thus much for the joys of getting your face on television, and your name in altogether too many file folders.

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Amodei: Not So Mr. Moderate?

Amodei 3Now this is some turn-around!  On April 28, in the year of our Lord 2014, Representative Mark Amodei (R-NV2) was “chiding” Senate Majority Leader Harry Reid (D-NV) for his position on the Bundy Brigands:

The Republican says he disagrees with Senate Majority Leader Harry Reid’s branding of them as “domestic terrorists” and doesn’t think Heller’s labeling of them as “patriots” helps to resolve the dispute over Bundy’s cattle.  Amodei says the issue is the “culture” of U.S. Bureau of Land Management law-enforcement operations in the West. [KOLO]

But wait! On the same day Representative Amodei was heaping praise on the BLM decision to stand down and refuse to offer the ersatz ‘patriots’ a chance to turn the situation in Bunkerville into their own Ruby Ridge, Waco, whatever other fantasy-land re-enactment they’d imagined for themselves.  Those inclined to accept Representative Amodei’s quick-whip-around talking points as evidence of moderation, should look to his recent voting record.

Exhibit One:  The House GOP budget proposal which leaves Pentagon spending unscathed but slashes funding for the Indian Health Service by 18%.  Also under the GOP meat axe, funding for fire fighting on federal lands, again cut by 18%. [HuffPo]  Not only does Rep. Amodei’s district contain a lengthy list of Reservations, but it’s also been known as the site of several recent, and truly large, wild land fires.  Rep. Amodei is fond of referring to his concern for ranchers in the 2nd District, but is apparently not quite so alarmed at the prospect of range fires destroying their grazing lands.

Nor should we miss the fact that the latest incarnation of the House GOP budget included the “Coupon Care” proposal which would eliminate Medicare as we know it, and substitute a voucher plan in its stead. [CBPP]

In case there are any consumers in the 2nd Congressional District, it should be noted that the Ryan Plan would eliminate the provisions of the Dodd Frank Act which requires that Big Banks have a plan in place to wind down operations, and that the FDIC can require the bankers to establish the plans to PREVENT future bailouts.  The ‘plan’ would also put the future of the Consumer Finance Protection Bureau under the guillotine of future Congressional budget cuts. [Hill]

When H.Con. Res. 96 (Ryan Budget) came to a vote on the House floor on April 10, 2014 — Representative Amodei supported it. [Roll Call 177]

Exhibit Two:  Once upon a time there was a mid-level IRS employee in a regional office who was accused of targeting conservative groups by not allowing political organizations to pass themselves off as social welfare institutions.  Truth be told, Lois Lerner acceded to a plan to look for key terms, like “political,” or “party,” on a watch list of sorts to cull the political from the social.  The ultra-right when ballistic.  “Conservatives were Targets of the IRS!”  Not. So. Fast.  Also on the list were terms like “Blue” and “Green Energy” and “occupied territory” organizations. [Wire]

However, this didn’t stop Government Affairs Committee Chr. Issa from claiming that the IRS ultimately “intended” to target more conservative groups, even as it was actually looking for ACORN successor organizations.

Failing to find any solid evidence of IRS targeting, or even of IRS ‘intent’ to increase scrutiny of conservative applicants, the Republican lead House voted anyway to recommend that Lerner be held in ‘contempt of Congress’ for citing her 5th Amendment rights.

This sort of thing happened on Capitol Hill before during the McCarthy Witch Hunt Era.  Lerner joins 10 Hollywood writers, producers, and directors who were voted “in contempt of Congress” for not cooperating with the infamous HUAC.  [Hist]  Rep. Issa may be missing the point that short term theatrical political gains can easily become long term memories of political infamy.

Who joined in the vote to find Lerner in contempt of Congress? None other than Rep. Mark Amodei (R-NV2), and Rep. Joe Heck (R-NV3).  [Roll Call 203]

Aligning oneself with the likes of Hamilton Fish III, Martin Dies, Jr., is not the way to convince most people that you are a proponent of moderation.

 

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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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Voices in the Wilderness

When the Northern Nevada Development Authority compiled its study of agriculture in Nevada (pdf) the report offered some insight into the political views which inform economic practices.

Unsurprisingly, the report cited the following survey results concerning the lack of expansion or “impediments to business growth,” “The biggest impediments to business growth were identified as laws and regulations (23.0%),transportation costs (20.9%), cost or availability of goods or materials (15.3%), reduced consumer spending (10.2%), and financing (10.2%).” Also unsurprisingly, the Federal government was the “impediment” for 65.5% of the respondents, 20.2% cited the state, and 10.8% blamed county or local governments.

“Regarding Federal agencies, the primary challenges for Nevada Agricultural companies are reported as excessive fees, burdensome permits, adjudication and process time and the lack of empathy in dealing with real world issues.” [AgriNV pdf]

The problem with words like “excessive,” “burdensome,” and “lack of empathy,” are that they describe qualitative impressions rather than quantifiable factors.  Let’s look at the fees first.

Grazing FeesNow, we might ask is the grazing fee “excessive” when it’s $15 in Nevada, but $19.40 in California? Or $33.50 in Nebraska? Or $17.50 in Colorado. Or is it “excessive” because the fees are $9.00 in Arizona? Or, $13.50 in Washington? [NASS]  For those wishing to delve into the weeds and details of the formulation, the National Agricultural Statistics Service provides the calculations. (pdf)

Is it “excessive” when the price at the Fallon Livestock Exchange (pdf) ranges from $144 to $242/per for steers? From $118 to $210 for heifers?  And, we should note at some point that states without federally available land for grazing have their cattle operations on private land, land often subject to modified property taxation.  Eastern growers complain Western ranchers are getting a government subsidy, while Westerners complain about the cost of transporting cattle.

There are those who accept the notion that “ranching for profit is an oxymoron,” however, this doesn’t have to be the case.  A major caveat should be inserted at this point — size matters.  Because profit margins tend to be tight the larger operations will almost inevitably be more profitable than the smaller ones.  IF the ranch is not one of the major models, then keeping labor costs low is essential, as is placing more emphasis on grazing than on feeding.

There are two other factors which bear consideration. First, the debt/equity ratio is an essential factor just as it is in any business.  For example, some cattlemen have fallen for the siren call — buy more land — or buy more ‘stuff’ — and profits will increase.  However, there is a point at which the debt level impinges on the credit capacity and the manager/rancher is headed toward the predictable financial disaster.

Secondly, altogether too many ranches have too much overhead.  There are buildings, shops, assorted equipment, etc. all of which must be depreciated and all of which can be a drain on the business end of the operation. [BFmag]

Are fees “excessive” if the rancher is getting a reasonable price for the cattle at auction, BUT has a ranch too small to be economically viable in this general economy, or has taken on too much debt, or has too much overhead, or has hired or taken on too many people on the payroll?

And, those “burdensome regulations?”  Is a regulation burdensome if it entails too much time to fill out paperwork? Or, if it cuts the profits? Or, must it do both?  Is the regulation a burden if it requires the individual to change methods or means of production instead of maintaining the status quo?  If a person were to consider any imposition a burden if it caused him or her to make any changes in means or methods then nearly all restrictions of any nature could be considered “burdensome.”  In short, the term may well be an instance in which an ideological expression is translated to an economic factor.

Here’s where the conflicting interests in a multi-faceted economy come into play.  The rancher may want to graze cattle ‘fence to fence,’ but the local tourism sector may need for grasses and other vegetation to remain on stream banks to enhance the trout fishing which draws enthusiasts and their dollars to the communities along a river.  The rancher may want to let cattle munch down the fire prone cheat grass in an area, but fire fighting interests would be better served if the burned areas were restored with alternatives to invasive vegetation, which might need to be restricted until the new vegetation takes hold.  A rancher may not consider local wildlife much more than pests, however in a wider, broader, view the wildlife may have environmental and economic value beyond the measure of a ranch’s profit margin.

Lacking empathy?  If we accept the definition that empathy is the ability to understand another person’s condition from their perspective, then other questions arise.  Are the respondents to the survey looking for empathy or sympathy?

Empathy generally means that one person understands the situation in which another person finds him or herself; sympathy acknowledges the condition and seeks to offer comfort or support.  A official may very well understand with some precision what a rancher is concerned about, but a rule or regulation might easily be such that there is little comfort or support which can be rendered.  If by ’empathy’ the individual wants the official to fix his or her problem, make it go away, or modify general rules so that he or she doesn’t have to make any changes then this goes well beyond empathy, and often beyond sympathy.

Generally speaking none of us wants to readily admit that a goodly portion of our problems are of our own making.  And, it’s entirely more satisfying to assert that they are the result of onerous forces beyond our control.   So, when we hear from an individual that “excessive fees,” “burdensome regulations,” and “lack of empathy” prevent him from creating a better business (of any type) how do we factor in his possible superfluous overhead? Her potential debt to equity ratio which impinges on management flexibility? His prospective over-extension of employment costs? Her conceivable  lack of capacity to utilize economies of scale?

How do we interpret responses such as “the federal government is impeding the expansion of my business” when we don’t know if the operation in question, whether agricultural, commercial, or industrial, had any viable capacity for significant economic growth in the first place?

It’s not that agriculture is unimportant, or that we might be justified in  dismissing the complaints out of hand. Agricultural activities add about $5.3 billion annually to Nevada’s economy.  The sector employs approximately 60,700 persons.  Alfalfa hay is the predominant crop, worth approximately $232,100,000 in a 2012 USDA report. This makes sense considering that cattle operations represent 62.5% of all agricultural receipts, or about $732,883,000. [AgriNV pdf]  However, the numbers pale when we consider that the total civilian workforce in the state totals 1,367,000. [BLS] Thus agricultural employment is about 4.4% of the total Nevada labor force.

The voices are real, they are in the wilderness, and they are complaining.  However, the time it takes to get permitting accomplished will not be reduced by cutting personnel from the Department of the Interior, or from the Department of Agriculture.  The time available for the BLM officials to attend to individual problems will not be enhanced by stripping its budget or freezing the number of people who can be hired to fill vacant positions.

Wishing that the Taylor Grazing Act had never been enacted, or that the Federal government didn’t exist, or that  clean water regulations don’t matter, will not make it so.  Empathy for “real world” issues means coming to terms with the business environment in which any enterprise must operate.  Even in the wilderness.

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