I’ve not heard Bundy say he is not a US Citizen. On the other hand, I’ve not heard him say he is a Nevada citizen. I have heard (or read? it all blends together sometimes) him say that he owes to Nevada or the county, iirc.
So, is it appropriate for Nevada to claim sovereignty over all the land within its borders and assert that it has first ownership to the land in the state?
That would be dispute decided between a state and the Fed, and I’d like to see the result, because it would have to be decided by the Scotus according to the Constitution.
I think the “dispose of” clause is the clincher argument. If they can dispose of Nevada contrary to the wishes of Nevada, then Nevada is not a sovereign state.
Indeed, if it belongs to the Federal Government, then they could give it to Arizona or Mexico. If Nevada only has authority over 20% of its territory, then it is not a state. It is still a territory.
It seems that Harry Reid is attempting to arrange a sale of a chunk of Nevada to China.
A litigant may plead alternate theories and defenses.
Bundy has argued in a Motion to Dismiss that a federal court lacked lacks jurisdiction because Article IV of the Constitution cannot be imposed upon him. Bundy claimed that he is a citizen of Nevada and not a citizen of a territory of the United States. Bundy also cited religious teachings as evidence courts lacked jurisdiction over him.
So, is it appropriate for Nevada to claim sovereignty over all the land within its borders and assert that it has first ownership to the land in the state?
We could be here all day discussing the history of Nevada and land claims. There was the 1851 Washoe Code, in which LDS and non-LDS ranchers and miners agreed on a system of land rights. Brigham Young laid claim to the land which is Nevada in 1857, by annexing it as a county of Utah, predating the Nevada Territory.
I’m not a lawyer. My rancher friend mentioned this case last night, and I finally found it. It involves the estate of Wayne Hage, who wrote “Storm Over Rangelands” and whose second wife was congressman Helen Chenoweth (https://en.wikipedia.org/wiki/Helen_Chenoweth-Hage).
“”No thief who has to pay for what he steals will steal for long.”
— Nevada rancher Wayne Hage, explaining to High Country News in 1995 why he had filed a lawsuit against the federal government over restrictions on his livestock grazing.
That landmark Sagebrush Rebellion lawsuit, hailed as protecting the rights of Western ranchers on public land, ground through the courts for 21 years. Early victories, including a multimillion-dollar award, caused anti-government advocates to hail Hage as a hero. But Hage died in 2006, and in late July this year, a three-judge federal appeals court panel overturned the award. “The court case is over,” says Karen Budd-Falen, a prominent Wyoming property-rights attorney. “But the conversation will go on. What (the Hage case) did was make people in the West, and in the federal land agencies, think about what kinds of rights they have and what kinds of responsibilities.”
http://www.hcn.org/issues/44.16/one-sagebrush-rebellion-flickers-out-or-does-it
More background at:
http://watchdog.org/56194/nv-wayne-hage-and-the-rout-of-property-rights-an-american-tragedy/
http://articles.latimes.com/2006/jun/09/local/me-hage9
“Grant and Hage’s family now advocates not for “rebellion” but “cooperation,” a theory that the federal government is compelled by law to work more closely with states and counties when revising public lands policy.”
http://news.yahoo.com/central-sagebrush-rebellion-case-suffers-defeat-172420051.html
The decision [United States v. Estate of Hage, No. 2:07-cv-01154-RCJ-VCF, Findings of Fact, Conclusions of Law, and Injunction (D. Nev. May 24, 2013)] in 2013 runs over 100 pages. While it rejects Hage’s legal theories on grazing rights, making improvements, etc, it also found:
“In the present case, the Government’s actions over the past two decades shocks the conscience of the Court, and the burden on the Government of taking a few minutes to realize that the reference to the UCC on the Estate’s application was nonsensical and would not affect the terms of the permit was minuscule compared to the private interest affected. The risk of erroneous deprivation is great in such a case, because unless the Government analyzes such a note in the margin, it cannot know if the note would affect the terms of the permit such that the acceptance is in fact a counteroffer.
The Government revoked E. Wayne Hage’s grazing permit, despite his signature on a renewal application form, because he had added a reference to the UCC to his signature indicating that he was not waiving any rights thereby. Based upon E. Wayne Hage’s declaration that he refused to waive his rights—a declaration that did not purport to change the substance of the grazing permit renewal for which he was applying, and which had no plausible legal effect other than to superfluously assert non-waiver of rights—the Government denied him a renewal grazing permit based upon its frankly nonsensical position that such an assertion of rights meant that the application had not been properly completed....
...The Government has sufficiently proved an ongoing trespass to warrant a permanent injunction, although not so broad an injunction as the Government desires. Defendants are also entitled to an injunction, as outlined, infra. There is a great probability that the Government will continue to cite Defendants and potentially impound Defendants’ cattle in the future in derogation of their water rights and those statutory privileges of which the Government has arbitrarily and vindictively stripped them. There is also a probability that Defendants will continue to permit their cattle to graze in excess of the incidental grazing permitted during stock watering that cannot reasonably be prevented. The Court will therefore enjoin all parties in certain respects and will require Hage to apply for a permit and the Government to grant it...
...THE COURT FURTHER FINDS that the denial of E. Wayne [*192] Hage’s renewal grazing application for the years 1993—2003 was an abuse of discretion, as well as a violation of due process, as the only reason given for the denial was that the applicant noted near his signature that he did not thereby relinquish certain unidentified rights under the UCC, a superfluous condition that cannot possibly have affected the terms of the permit. It is this violation that has led to all of the allegedly un-permitted grazing to date and the BLM’s refusal to offer any permit to Hage himself.
IT IS HEREBY ORDERED that the Government is enjoined from unreasonably interfering with the ability of Defendants Wayne N. Hage and the Estate of E. Wayne Hage to bring cattle to those water sources and attendant ditches in which these Defendants have vested rights to water their cattle as identified herein. The Government may impose reasonable regulations upon access to these water sources, such as specifying which routes shall be used for ingress and egress, if it is necessary to impose such restrictions for legitimate purposes. Reasonable regulations are those that neither prohibit access to the water nor restrict access to the water in a way that unreasonably burdens the ability to access and use the water.”
The full case is available online here. I think it covers, in a sensible fashion, a lot of the legal issues on how the USFS & BLM manage land. I think it correctly blames the federal agencies for outrageous behavior while also saying the rancher’s legal theories are inaccurate. I haven’t read the whole thing, but I plan to over the next few days: