Why Cliven Bundy Stands for the Constitution

Buchal for Congress campaign website ^ | April 15, 2014 | James L. Buchal

[Buchal]

The saga of Cliven Bundy and his disputes with the U.S. Bureau of Land Management has been in the news recently, and many Oregonians cannot understand why rural folk all over the West identify with Mr. Bundy. A spokesman for his nemesis, the Center for Biological Diversity, summed up the urban case against Bundy, complaining that the BLM "is allowing a freeloading rancher and armed thugs to seize hundreds of thousands of acres of the people's land as their own fiefdom." But the Center for Biological Diversity has a proven history of lying about ranchers and grazing, and no rancher could possibly seize a vast 1,200-square-mile area of rangeland by running a few hundred cows on it.

Mr. Bundy lost all his court cases fighting the federal government, but few have bothered to explain what those cases were about. Under Nevada state law, livestock are free to wander the open range. The federal government, which acquired portions of what later became Nevada by the conquest of Mexico, decided that it didn't like Nevada's open range law and would charge for grazing. Naturally, over time, it raised the grazing fees so high as to drive most of the rangers out of business. And it began to impose absurd limitations on the number of cattle that could be grazed, ostensibly to prevent them from stepping on desert tortoises. Later, it closed the land to grazing entirely.

In truth, the federal government should not own the land at all. The United States promised, when it made Nevada a state, that it would admitted on an equal footing with the other states. The United States also promised to sell off the remaining public lands it owned in Nevada and pay 5% of the sale proceeds to Nevada to build public roads and irrigation systems.

That was back when we still had a Constitution that operated to constrain the federal government. Under the Constitution, the only land the United States was supposed to hold for the long term was to run "Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings". Nevada has passed a statute asserting control of the public lands held in violation of this design (NRS 321.5973), but the federal courts will not give this law any effect.

That is because the United States changed its mind. Residents of Eastern states, after admission to the United States, got their own land when the federal government sold it, and then turned around and screwed their Western neighbors by stopping the sales, conduct that an 1833 Congressional report had warned would be "a most revolting breach of good faith on the part of the United States." Mr. Bundy lost his federal cases because federal judges upheld that "revolting breach of good faith".

So under modern federal law, the United States owns roughly 80% of Nevada, and its highest priority for the land Bundy and his family ranched for generations is now to protect desert tortoises. Ironically, the BLM recently announced plans to slaughter hundreds of desert tortoises it had been maintaining on funds extracted from real estate developers in Nevada. Apparently, the federal planners hadn't anticipated that the pace of development might slow. Presumably the tortoises were removed from the wild, meaning that the entire Endangered Species Act developer racket not only accomplished nothing more than paying BLM salaries, it actually increased the pressure on tortoise populations.

Bundy also tried to point out that the Endangered Species Act is obviously unconstitutional, since Congress has power to regulate interstate commerce, not wandering turtles. But the courts will not enforce that part of the Constitution either, and have allowed the Endangered Species Act to expand far from its its original "Noah's Ark" mission into an expensive fraud. Here in Oregon, we shut down timber harvests based on the lie that spotted owls had to have old growth timber to survive, only to learn that we must now protect them by hiring owl assassins to kill their real enemies: competing owls with a different, barred feather pattern. The worst fraud was probably when biologists listed the Klamath River sucker fish to extract research dollars, and later claimed that Upper Klamath Lake had to be kept full to protect the suckers--even though that was when fish kills from algae growth usually happened. The sucker fraud continues, even though there are millions of suckers in lakes and ponds all over the Klamath area.

Low-information urban residents who believe the lies of the Center for Biological Diversity and its ilk are clueless about how the Endangered Species Act really works. In general, things that kill a whole lot of endangered species, like fishing for them, are allowed to continue, while things that environmentalists don't like, with only the tiniest risk of even injuring endangered species, are shut down. Rich and/or politically-connected groups can kill all the endangered species they want, but not the little people like Cliven Bundy.

So all in all, even though Cliven Bundy isn't the best poster child for a Sagebrush Rebellion, having lost his court cases and failed to pay his grazing fees, I want to recognize him for his public service in bringing these issues to public consciousness. As a Member of Congress, I would work to restore the Constitutional vision of limited federal government to return Nevada's land (and Oregon's land) back to those like Bundy with the gumption to work that land. Conservation is the wise use of natural resources, not a program to turn the rural West into a fiefdom for environmentalists.

[TNoldman]

This Link provides info on the Myths about the Cattle and Turtle debate.

http://www.godlikeproductions.com/forum1/message2526754/pg1

[TBP]

The enclaves clause and the takings clause come into play here too.

[noinfringers2]

I now take/pay particular attention to what level(s) of government are involved in such disputes. As a person having quite a few years of public service these situations are most often decided by courts at the level of the question. In other words if there is a dispute at the state level the state judges will rule generally for the state which I believe involves paying the piper. This goes on all the way to the highest court. One only has to see the photo of CJ Roberts in front of the Bank of the Vatican on Malta with a briefcase to easily associate such a sighting with his recent voice in the SC’s ruling on Obamacare. Our founders warned that such perfidy would be a problem under the new Constitution. There have been such warned about events in the past but nothing to the extent and effect as under Obama with his ‘change’ ideas complimented by any number of people who want to be jackboot enablers/enfocers.

[Mr Rogers]

Since you’re a lawyer and I’m not, what is your opinion on this ruling and why:

http://openjurist.org/107/f3d/1314/united-states-v-gardner

“The claim by Gardners that it is the duty of the United States to hold public lands in trust for the formation of future states is founded on a case dealing with land acquired by the United States from the thirteen original states. In that case, Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845), the Supreme Court discussed the extent of the United States’ authority over lands ceded to it from Virginia and Georgia to discharge debt incurred by those states during the Revolutionary War. The Court stated that the United States held this land in trust for the establishment of future states. Id. 44 U.S. (3 How.) at 222. Once those new states were established, the United States’ authority over the land would cease. Id. at 221-23. This decision was based on the terms of the cessions of the land from Virginia and Georgia to the United States. 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.
17

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.” Kleppe v. New Mexico, 426 U.S. 529, 539, 96 S.Ct. 2285, 2291, 49 L.Ed.2d 34 (1976); United States v. San Francisco, 310 U.S. 16, 29, 60 S.Ct. 749, 756, 84 L.Ed. 1050 (1940). See also Alabama v. Texas, 347 U.S. 272, 273, 74 S.Ct. 481, 481-82, 98 L.Ed. 689 (1954); United States v. California, 332 U.S. 19, 27, 67 S.Ct. 1658, 1662-63, 91 L.Ed. 1889 (1947); Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99, 20 L.Ed. 534 (1871); United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537, 10 L.Ed. 573 (1840). Moreover, the Supreme Court has noted that Congress “may deal with [its] lands precisely as an ordinary individual may deal with his farming property. It may sell or withhold them from sale.” Light v. United States, 220 U.S. 523, 536, 31 S.Ct. 485, 488, 55 L.Ed. 570 (1911) (internal quotation marks and citation omitted). Indeed, the establishment of a forest reserve by Congress is a “right[ ] incident to proprietorship, to say nothing of the power of the United States as a sovereign over the property belonging to it.” Id. at 537, 31 S.Ct. at 488....”

[Scoutmaster]

Facts are not permitted in a discussion about Clevin Bundy. That was established the first time a poster quoted Bundy’s sovereign citizen defense and was immediately greeted by the response, and I quote it in its entirety: “Go to hell!”

[Buchal]

It is certainly true that the Supremacy Clause gives the federal courts a rationale to allow federal law to displace state law. But it is a doctrine that is selectively invoked and interpreted. As for Gardner, the case turns on one’s political perception of the United States. The original conception was not full sovereignty, but an agent of the states with limited and enumerated powers. Under this conception, one might easily hold that the United States, when it comes into possession of property other than by purchase from a state with some sort of state relinquishment of state sovereignty, holds the land as agent for the states, or in trust for them, to be gotten rid of in a reasonably expeditious manner. Once one conceives of the United States as a full sovereign, with numerous powers inherent to sovereignty (how we wound up with printing press money, by they way), then one takes a different view.

[Buchal]

I do not claim to be a Cliven Bundy expert. What I wrote was based, in part, upon some of his filings in federal court that I could get access to. Interestingly, there was no “sovereign citizen” defense in what I read, merely the articulation of some of the arguments I recited. I should say I call them “well-founded” in the sense of being based on the original and true conception of the Constitution, rather than being “well-founded” in light of modern federal case law.

[Mr Rogers]

“Once one conceives of the United States as a full sovereign, with numerous powers inherent to sovereignty (how we wound up with printing press money, by they way), then one takes a different view.”

That kind of sounds like the US Constitution, as opposed to the confederacy that existed before the Constitution.

https://en.wikipedia.org/wiki/Articles_of_Confederation

[Buchal]

I am inclined to view the “full sovereign” interpretation as a serious and dangerous misinterpretation of the Constitution. The whole premise of the instrument is a government of enumerated powers only (e.g., Art. I, section 8), with powers not enumerated to be retained by the States or the People (10th Amendment). In my mode of interpretation, arguments from the text beat arguments from history, and one could beef up the Articles of Confederation without supplying full and general sovereign authority.

[Mr Rogers]

I would argue, along with what seems to be every court in the last 200 years, that it is NOT improper for the federal government to buy land, own it and use it. The land owned by the US never automatically transferred to the states upon statehood, and a number of states were created with the agreement that they would NOT EVER lay claim to the US land.

I fail to see how a state that agreed to the conditions of a contract can then completely reverse the terms of that contract unilaterally.

“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

As far back as 1819 the courts were saying, “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.”

It seems to me that “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” is pretty clear, and establishing a regulatory body to oversee land owned by the US is well within the scope of the US Constitution.

It further is obvious that much of the land in Nevada and Utah was NOT WANTED for a hundred years, and even now sustains such limited grazing as to be commercially nonviable. The US tried to give the land away, and no one wanted it. Nor did open grazing work well. It was destroying what limited value the land had for anyone, so the idea was abandoned.

For Bundy to decide in 1993 that the US government has no authority in Nevada to make laws or to regulate anything makes Bundy a nut. We are not a confederacy of sovereign states with a government as limited as it was under the Articles of Confederation. Those articles were replaced by the Constitution.

[Regulator]

What you’re actually talking about happened in the 1920s on the Kaibab plateau.

It’s the classic example of human interference in a biological niche that resulted in exactly the opposite of what was intended.

[infowarrior]

Today’s news includes items that say the United States Postal Service-—USPS— is ordering large amounts of ammo.

WHY???

As financially strapped as the USPS is, that becomes a *very* pertinent question...

the infowarrior

[Scoutmaster]

I call them “well-founded” in the sense of being based on the original and true conception of the Constitution, rather than being “well-founded” in light of modern federal case law.

With that, I agree.

[ProudFossil]

One of my parent's neighbors in the 1970’s was contracted to capture as many Puma's as he could at the Grand Canyon. He was one of several trapper/hunters doing this. It lasted about two years. I can remember visiting the folks and then going down to his dairy (his real job) and seeing the cats in their heavy cages. At one visit he had three. They were transplanted around the Rockies. I do know that it really upset the predator/prey balance for a while.

[TigersEye]

The historic bison range didn't really extend that far southwest.

(click on pick to see map at source)

More detailed maps on Wiki here)

“The most complete data is from the Beaver Dam Mountains. Woodbury and Hardy reported a tortoise population density of 150 per square mile in 1948. BLM reduced cattle grazing a few years later and eliminated cattle in 1970. Coombs reported a tortoise density of 39 per square mile in 1974. In these 26 years cattle use was reduced 100 percent and tortoise numbers were reduced 74 percent.

“These tortoises were doing so poorly a veterinarian, Dr. Jarchow, was consulted. He reported all six specimens were suffering from osteoporosis caused by a protein deficiency in their diet. Dr. Jarchow examined five specimens from the same mountains that shared their range with cattle. He reported these specimens were all healthy and well nourished.

“The historical record proves conclusively that tortoise thrive when cattle are on the range with them and without cattle grazing they are always malnourished and unhealthy and their numbers plummet.

http://www.vinsuprynowicz.com/?p=80

But we have no idea what the population density of Desert Tortoises was before there was cattle grazing there. No one ever did a survey AFAIK. Was it 150 per sq mile as it was in 1948 or a higher or lower figure? Unless some early botanist did a well-studied survey we will probably never know. We do know that the BLM is intentionally killing several hundred of them that they failed to care for properly on their own reserve.

[Buchal]

In the 1845 case of Pollard's Lessee v. Hagan, the Supreme Court held:

"We think a proper examination of this subject will show that the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama or any of the new States were formed, except for temporary purposes and to execute the trusts created by the acts of the Virginia and Georgia legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty with the French Republic of the 30th of April, 1803, ceding Louisiana."

(I have added the italics.) By the same rationale, the treaty with Mexico pursuant to which the land now constituting Nevada was acquired could be held to create a trust, because, again, it was never the original conception of the Constitution that the United States would have permanently large landholdings over which it exercised general sovereignty, even under the Property Clause.

[Mr Rogers]

“The Spanish granted Hagan some submerged land covered by tidal waters (aka a swamp) in what is now Alabama, but at the time was part of Georgia. Georgia recognized Hagan’s claim in 1795.

Alabama was carved out of land initially claimed by Georgia, but ceded to the Federal government in 1802. The deal between Georgia and the Federal government was that the Federal government would take the land in trust in order to sell off parcels of it to settlers, which would eventually become new States.

In 1836, the Federal government was selling off land in what was now Alabama, and sold the submerged land to Pollard.

Historically, when the US acquired new territory that wasn’t originally claimed by the original 13 States (like the acquisition of the Louisiana Purchase), the general process was that all of the land was considered the property of the Federal government, and they would divvy it up and sell it off to private individuals.

Hagan sued, arguing that the Federal government had no right to sell the land.

Hagan argued that, based on Martin v. Waddell’s Lessee (41 U.S. (16 Pet.) 367 (1842)), all submerged land that is in Alabama is owned by Alabama, not the Federal government.

In the case of Martin the US Supreme Court found that submerged lands under navigable waters in the original 13 States was the property of the States, as opposed to the Federal government.

The basic idea behind the Martin decision was that the States control their waterways (for navigation and riparian rights), and that the Constitution didn’t give the Federal government the right to take those valuable resources away.

FYI, this only applies to waters that were navigable at the time of Statehood. Sometimes it’s a factual question whether the waters were navigable.

Pollard argued that this didn’t apply because Alabama wasn’t one of the original 13 States.

The Trial Court found for Hagan. Pollard appealed.

The Trial Court found that since the land was underwater when Alabama became a State in 1819, the US had no authority to grant title to Pollard.

The Alabama Supreme Court affirmed. Pollard appealed.
The US Supreme Court affirmed.

The US Supreme Court noted that based on Martin, submerged land in the original 13 States always belonged to the States.

The Court found that when Alabama became a State it was admitted on an equal footing as the original 13 States.

Therefore, all the submerged land in Alabama was automatically owned by the State of Alabama, and was not owned by the Federal government.

The Court found that since the Federal government never owned the land, they did not have the right to sell it to Pollard.”

http://www.invispress.com/law/natural/pollard.html

For emphasis:

“The deal between Georgia and the Federal government was that the Federal government would take the land in trust in order to sell off parcels of it to settlers, which would eventually become new States.”

However,, notice that the case involved submerged land, and “submerged land in the original 13 States always belonged to the States”. It does not apply to dry land, which could be owned by the federal government.

[Buchal]

The language I quote is, as you point out, obiter dictum and not directly relevant to the holding of the case. But it still reflects the common understanding that that land which did become the property of the United States was only supposed to be held temporarily. Otherwise states like Nevada are not on an equal footing with other states; they are crippled by lack of control over most of the land within their borders.

[Mr Rogers]

“But it still reflects the common understanding that that land which did become the property of the United States was only supposed to be held temporarily.”

False. The court noted that was part of the agreement between Georgia and the US. It was NOT part of the agreement between Mexico and the US.

THE PROBLEM IS CONGRESS, NOT THE COURTS.

The courts are following well established law.

It is CONGRESS that could, tomorrow, turn over all BLM & USFS land to the states. It is CONGRESS that could require the BLM & USFS to issue grazing permits equivalent to what was issued in 1965, and do it tomorrow! CONGRESS could repeal the Wilderness Act, and allow towns like Tombstone access to their legal water rights tomorrow!

Stop getting mad at the courts. Get mad at CONGRESS, because that is the only chance for change.

It is bastards like my two REPUBLICAN senators, McCain & McFlake, who are laughing while the BLM buttplugs ranchers! They are the ones who won’t lift a finger to help Tombstone get its water!

http://azstarnet.com/news/local/tombstone-loses-appeals-court-bid-to-repair-mountain-water-supply/article_f3a5f58e-6d12-5f51-9b68-33106a319011.html

[Mr Rogers]

“When asked in an interview why the Wilderness Act did not compel the U.S. Forest Service to block the city of Tombstone, Nick Dranias responded, “The Wilderness Act is subsequent to Tombstone’s rights. Tombstone has had these rights since 1881, and they are extremely well documented. The Wilderness Act explicitly says that it is subject to existing rights. Not only that, but the Forest Service manual says that customary uses and mechanized equipment can continue to be used under the Wilderness Act. In the past, they routinely allowed them to repair these water lines. In 1977 the lines were washed out, and they went in and repaired them. In 1993 the lines were washed out, and they went in and repaired them. In 2000 to 2001 they made repairs involving welding and the use of backhoes. This is the first time ever that the Forest Service has cited the Wilderness Act to block customary access to property rights that date back to 1881.”...

...There has been very little response outside of Tombstone itself from Federal elected officials. Tombstone is located in CD 8, formerly represented by Gabrielle Giffords. When asked if the interim office staff would respond to a request for help from, say, the mayor of Tombstone, a CD 8 representative said, “We can’t get involved in taking any positions until there is a new representative.” Raul Grijalva’s office did not return a telephone inquiry. Rep. Jeff Flake, from a congressional district to the north, did write a letter to the Forest Service demanding an explanation.”

http://soaznewsx.com/The-Territory/ID/52/US-Forest-Service-challenges-Tombstones-water-rights-under-the-Wilderness-Act