After a six-week takeover of Malheur National Wildlife Refuge in eastern Oregon, Ammon Bundy and seven other members of his ragtag militia were in a Portland jail facing criminal proceedings. And Robert “LaVoy” Finicum, inspired to join the occupation following an earlier armed resistance by Bundy’s father, was dead – shot by police officers after attempting to avoid a traffic stop on the highway north of the city of Burns.
Late in 2015, Finicum had notified the Bureau of Land Management (BLM) that he would no longer pay grazing fees or even recognize the federal agency’s legitimacy. “These grazing rights are private property rights,” he told a reporter for the St. George (Utah) News. “Our stand is that the Constitution forbids the BLM from owning and controlling that land.” The Arizona rancher was mourned as a martyr to the anti-government cause at an all-day funeral in Kanab, Utah.
The Malheur occupation provided fuel for a lands-transfer campaign by much more sophisticated actors.
The last four Malheur holdouts surrendered to the FBI on February 11. The refuge occupation had divided the Harney County, Oregon, ranching community, and failed to spark widespread resistance to the BLM. Worse, Bundy’s many televised interviews publicly exposed his misguided beliefs in natural law, the primacy of state sovereignty and unrestricted private property rights.
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But the Malheur occupation did provide fuel for a lands-transfer campaign by much more sophisticated actors. Most notable is the American Legislative Exchange Council (ALEC), a Virginia-based membership organization of state legislators “dedicated to the principles of limited government, free markets, and federalism.” Supported by Koch-brother money, ALEC is a powerful latecomer to the decades-long Sagebrush Rebellion against federal ownership of land in the West. Public ownership of total acreage in 11 Western states ranges from 53 percent in Oregon to 66.5 percent in Utah, and 81 percent in Nevada.
ALEC’s most significant victory came in Utah, where the state legislature in 2012 passed the Transfer of Public Lands Act. That statute required the federal government to transfer certain federal land to the state by 2015 or face a lawsuit. The statute fizzled at the end of 2014, primarily because the US Constitution’s supremacy clause clearly states that federal rights have priority whenever they conflict with state law.
But ALEC never blinked. In a September 2015 report, “The State Factor: Federally Managed Lands in the West,” the council maintained that state governments would be better economic stewards of federal land, despite having to assume management costs and losing millions of dollars in federal subsidies through such programs as payment in lieu of taxes. The Center for Western Priorities counted 36 land transfer bills, many of them based on ALEC’s model legislation, introduced in state legislatures during the first six months of 2015. Of those, only six passed.
ALEC’s embrace of state sovereignty comes in second only to its missionary zeal in pursuit of free markets. The council’s resolution on the transfer of public lands, approved by ALEC’s board in 2013, states, “limiting the ability of western states to access and utilize the abundant natural resources within their borders locked up in federally controlled lands is having a negative impact upon the economy of the western states and therefore the economy of the entire United States.”
Ironically, the legal battle over control of federal land was joined in federal court just two weeks into the Malheur occupation. It came in an opinion by the US Court of Appeals for the Ninth Circuit in an unrelated action for damages and injunctive relief against a Nevada rancher who grazed cattle on federal land without a permit. The appellate opinion, issued on January 15 by the court in San Francisco, clarified the state of federal land-use law – and also exposed widespread hostility between ranchers and the BLM that extends to attitudes within the federal judiciary itself.
The Case for Public Land
The case, United States v. Estate of E. Wayne Hage, involved the intentional grazing of cattle on federal land by father-and-son Nevada ranchers who hadn’t held a grazing permit since 1993. A year later, the elder Hage wrote Storm Over Rangelands: Private Rights in Federal Lands, a book still popular with Sagebrush Rebellion supporters. At the trial, the Hages had contended that water rights inherited from their forebears in the 1800s provided a defense to the government’s action for trespass and collection of grazing fees.
Writing for a unanimous three-judge panel, Ninth Circuit Judge Susan P. Graber began the opinion by citing Article IV of the US Constitution: “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 according to a 19th century US Supreme Court case recently cited by the Ninth Circuit, she wrote, “That power is subject to no limitations.”
Graber acknowledged that until the 1930s, longstanding custom in the Western states allowed ranchers to use open, unreserved federal land for grazing stock – a custom the Supreme Court consistently referred to as an “implied license.” Then Congress passed three federal statutes, beginning with the Taylor Grazing Act of 1934 and ending with the Federal Land Policy and Management Act of 1976, which clarified the government’s grazing permit system. “All three Acts,” Graber wrote, “clearly state that the issuance of a permit does not create any property rights.”
But this dispute arose in Nevada, where hostility to the BLM can be epidemic. In 2014, Cliven Bundy led a much-publicized volunteer militia seeking to prevent federal agents from seizing cattle he had been grazing on public land for years without obtaining permits. Bundy refused to pay $1 million in accumulated grazing fees and has yet to settle the dispute. (On February 11, Bundy was arrested in Portland, Oregon, and charged with six federal crimes stemming from the 2014 confrontation.)
When the Hages went to trial in their unrelated case, they encountered a like-minded conservative: US District Judge Robert Clive Jones in Reno. Jones, appointed in 2003 by President George W. Bush, has been reversed by the Ninth Circuit numerous times on appeal.
A Friend in Court
On the first day of the 21-day bench trial, according to Judge Graber, Jones had told government lawyers, “The Bureau of Land Management, you come in with the standard arrogant, arbitrary, capricious attitude that I recognize in many of these cases.” He added, “Your insistence upon a trespass violation, your arbitrary determination of willfulness is undoubtedly going to fail in this court.” He then held two federal agency officials in contempt for taking ordinary lawful actions against the ranchers, granted the Hages a highly unusual “easement by necessity” to public land based on their water rights and ordered federal agencies to issue grazing permits.
The government appealed and the Hages won support from the Sacramento-based Pacific Legal Foundation, a champion of private property rights that filed an amicus brief on their behalf.
But the Ninth Circuit was having none of it, finding that Jones’ “easement by necessity” was contrary to longstanding binding precedent and that he had abused the power of contempt. It reversed the judgment in part, vacated in part and remanded the case. Graber found that Jones was so biased that she gave instructions to the chief judge in the district of Nevada to assign the case to someone else.
Of course, the campaign to transfer federal land in the West isn’t over. After Ammon Bundy made his first court appearance, he told the remaining occupiers through his lawyer,
Please stand down. Go home and hug your families. This fight is now in the courts.
Utah Picks a Fight
So the lawyers will now have at it – in Oregon and elsewhere in the West. In Utah, the state legislature approved spending $2 million to investigate whether it could make good on its threat in 2012 to force land transfers by suing the US government. The Utah Commission for the Stewardship of Public Lands retained the Davillier Law Group in New Orleans to determine if legitimate legal theories exist – and to no one’s surprise, the analysis came back favorable.
In December 2015, a team of five lawyers reported that Utah might litigate under theories based on the equal sovereignty principle, the equal footing doctrine and the compact theory. According to the American Constitution Society, all three theories rely on “new, nontextual argument rooted in analogies from contract law.” The post pointed out, however, that even if state enabling acts were viewed as contracts rather that statutes, “The plain text of most Western state enabling acts expressly renounces state claims to federal land.”
As tacit acknowledgement of its legally shaky analysis, the Davillier Law Group recommended that Utah bypass the lower federal courts entirely and “consider instituting litigation against the United States of America under the Original Jurisdiction of the United States Supreme Court.”
Translation: In a political atmosphere influenced by useful fools, file suit directly with the conservative Roberts court and hope a 5-4 majority opinion overturns constitutional law to transfer federal land to the states.