Federal Government vs. the West - A Century of Conflict

The New American ^ | 03 May 2014 | William F. Jasper

[VitacoreVision]

America's Founders intended for the federal government to transfer the Western lands to the states. Failure to do so has led to more than a century of conflict.

Feds vs. the West

The New American
03 May 2014

The Nevada cattle rancher in the white cowboy hat and his supporters had massed in defiance of federal policies and agencies that threatened to drive them into extinction. To the cheers of locals, the rancher climbed aboard a Caterpillar bulldozer and plowed open a county road that had been closed by the U.S. Forest Service (USFS). Are we talking about Cliven Bundy in 2014? No, the white-hat rancher to whom we are referring was Richard “Dick” Carver, a longtime county commissioner in Nevada’s sprawling and sparsely populated Nye County, and the date was July 4, 1994 — Independence Day, 20 years ago.

Carver’s act of defiance earned him a cover on Time magazine, which showed Carver and some of his supporters, with a super-imposed headline “Don’t Tread on Me,” followed by the subtitle, “An inside look at the West’s growing rebellion.”

While the federal government claims 84.5 percent of Nevada — the highest of any state — in Nye County the federal footprint covers over 93 percent, and federal bureaucrats in Washington, D.C., dominate virtually every aspect of Nye County inhabitants’ lives. Nye County, the nation’s third largest county, was also home to the late Wayne Hage, the feisty rancher/scholar who, for decades, courageously fought the federal government in court — and won landmark decisions for property rights. Hage was also author of the 1989 book Storm Over Rangelands: Private Rights in Federal Lands, a ground-breaking work on the history of the Western states, particularly as it relates to politics, governance, land use, and property rights. It is not surprising then that Nye County became the face of what is known as the “Sagebrush Rebellion II,” an effort by citizens in Western states to wrest control away from oppressive federal bureaucrats. The efforts by Carver, Hage, and others in the late 1980s-1990s were a continuation and resurgence of earlier efforts in the 1970s-1980s, often referred to as Sagebrush Rebellion I. Carver challenged the federal road closures in court.
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Full Story:
http://www.thenewamerican.com/usnews/item/18177-feds-vs-the-west

[ForYourChildren]

Correct in that the case involved specifically “the navigable waters and soils under them."

But the language in the decision covered all property,

"when each of the designated States in the territorial area achieved a population of 60,000 free inhabitants it was to be admitted 'on an equal footing with the original States, in all respects whatever.'"

"Alabama is, therefore, entitled to the sovereignty and jurisdiction over all the territory within her limits, "

[Sherman Logan]

I understand that is what you believe.

What I haven’t seen is evidence that this is or ever was required by Constitution or law.

No offense intended, but your belief as to what good policy should be, is in and of itself of no greater value than mine or anyone else’s.

If title to all unsold public lands transferred to IA, or MN, or KS at statehood, you should have no trouble finding proof of it. I haven’t been able to.

If it wasn’t transferred, the whole notion that the western states were peculiarly ripped off falls apart.

[Sherman Logan]

As explained in the post above with regard to the Resolution of 1780, sovereignty and jurisdiction are entirely different concepts from private title to land.

[ForYourChildren]

I understand your disagreement, and that is ok with me. So the following is not necessarily directed to you, but such that others can see it also ...

Justice John McKinley, wrote the Opinion of the Court..

“the right of Alabama and every other new State to exercise all the powers of government, which belong to and may be exercised by the original States of the Union, must be admitted, and remain unquestioned...; and that, once Congress itself erect[s] new States... the municipal sovereignty of the new States will be complete, throughout their respective borders, and they, and the original States, will be upon an equal footing, in all respects whatever.”

[B4Ranch]

Since I won’t be the one arguing the issue in Court or before Congress I’m not going to stress over not know where the text is.

[Sherman Logan]

Thanks. I don’t claim to be an attorney, but it seems to me that “the municipal sovereignty of the new States” does not even imply ownership of all land within its borders.

BTW, ran across a really interesting overview of the history of federal land ownership. Unfortunately, it doesn’t specifically address the question of whether all land title was ever transfered at statehood.

http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL34267_12032007.pdf

[B4Ranch]

How can a state be on equal footing when the Feds still own part of the sovereign state’s lands?

“Our government system is established by compact, not between the Government and the State Governments but between the States as Sovereign Communities.” By James Madison 1821

(This is what make the County Sheriffs the highest law enforcement officer in that County and gives him/her the authority to tell the BLM, the FBI or any other Federal Agency to get out of the County or they will be arrested and jailed.)

[ForYourChildren]

Thanks for the link. Also, for the record, I am also not an attorney. But even then, today, many attorneys and judges are just flat out wrong and many admit to being activist, and willfully decide to ignore previous law and are willing to create their own laws according to their own whims and emotions.

The specific case which I have been previously citing talks in great detail about title; and then seems to me to reference the complete sovereignty and jurisdiction and equal footing as an overarching argument.

The link you posted describes how the original 13 colonies became states. So the way I see it, when they became states, they recognized that their frontier lands were territories by practice and gave them up to the FedZilla. The 13 states had title and held sovereignty and jurisdiction to all properties within their boundary. As more territories joined the union and became states, they are supposed to hold title to properties and hold sovereignty and jurisdiction over all properties within their boundaries - per equal footing with the first 13 states.

[oldfart]

I’ve broached this subject before, in other threads, and I think it needs to be brought up here again.

Reading through all the comments, I see lots of references to the Supreme Court and their decisions. Most people believe that the SCOTUS is the supreme arbiter on the legality of laws and regulations.

Wrong! WE are the supreme arbiters!

Case in point: There was a time in our own national history when it was perfectly legal to own, sell, beat or kill certain human beings based on their skin color. SCOTUS was perfectly comfortable with that, though more and more citizens were starting to have second thoughts. In time SCOTUS reversed itself. Why? Because laws and the courts merely reflect what the people want. When enought notice was taken of the inhumanity of slavery, it ended. Note: Lincoln did not end slavery with his Emancipation Proclamation, he only ended it in those southern states that had seceded. While it was not widespread in the North, it still existed for several years.

Anyone remember the Nuremburg Trials? A goodly number of guards from those concentration camps - when charged with crimes against humanity - pled “I was only following orders” right up until the trapdoor fell from under their feet. Of course those guards had had a real dilemma Choose to not follow orders and be killed and shove those Jews into the gas chamber and hope Germany might win the war. Murder was never a consideration because the German courts had already deemed it perfectly legal to kill Jews (and a few others).

So now here we are, waiting with bated breath for SCOTUS to pass judgement on some law. Is it legal for government agencies to field heavily armored SWAT teams to serve warrants - or not? Is it legal for the government agencies to maintain list of citizens who own fully automatic weapons - or not? Is it legal for government agencies to confiscate private property without cause - or not?

I could go on with a longer “...history of repeated injuries and usurpations” but these should be enough. And what are we going to do about them? Wait for SCOTUS to rule in our favor? Need I remind you that SCOTUS is a branch of the government. Would any of us expect a tree branch to wind itself around the trunk so tightly as to strangle it? To help readers I suggest they look back a couple of paragraphs and change some words:

“So now here we are, waiting with bated breath for SCOTUS to pass judgement on some law. Is it RIGHT for government agencies to field heavily armored SWAT teams to serve warrants - or not? Is it RIGHT for the government agencies to maintain list of citizens who own fully automatic weapons - or not? Is it RIGHT for government agencies to confiscate private property without compensation - or not?”

So, it’s up to you (and me) to decide what is right and legal. There will be pain for those who choose to buck the system but there’ll also be freedom for your kids and grandkids and isn’t that why we’re here?

[Ben Ficklin]

With reserved rights an indian(s) with a treaty right to farm is entitled to a water right and this was not controversial because the amount of water is predictable and can be allocated for as just any other prior appropriation right.

When that is applied to an indian(s) treaty right to fish it is difficult to apply because it is not a specific amount of water, so it really becomes a minimum flow, or sets a minimum flow in the river.

Likwise, the flora and fauna on federal land or the flora and fauna that depend on federal water(water created by the feds impounding water) has a water right that is impossible to allocate for so it is also a minimum flow.

So during times of drought, a prior appropriation water right holder(possibly a farmer) would not get his water because if he did get his water, it would reduce the water in the stream to below the minimum flow.

A specific example is the delta smelt. Because of the drought, some farmers with junior water rights were denied water because of the minimum flow.

Same way with the conflicts a number of years ago on the Klamath River. In that case the Indians had a treaty right to fish. The federal wildlife refuge had a water right. And the suckers in the lake had a water right. OTOH, those farmers with junior prior appropriation rights were denied water. But those farmers with riparian rights kept their water.

So Bush cut off the water and there was a big die off of Salmon in the river.

If you convert the federal land to state land, then the minimum flow for the federal land doesn't apply.

The way the issue always play out is that one group says there doesn't need to be a minimum flow, that any drop of water not utilized is wasted. The other group says there has to be a minimum flow, but within this group there will be wide dis-agreement as to what the minimum flow should be. The second group sits at the table and negotiates a deal, but the first group that said no to a minimum flow doesn't get a seat at the negotiating table.

In the case of the Klamath river, they sat down and negotiated a deal on the entire watershed, which is now being implemented.

[Sherman Logan]

Thanks. I find the whole thing more than a little confusing.

[Ben Ficklin]

"more than a little confusing"

Amen. We can read all this stuff, but unless you are a qualified/experienced lawyer looking at the Code Book, how can you or I say with certainty?

I thought about reading the entire FLPMA with amendments that is published at the BLM website, but at the very top it said that even though BLM put forth effort to make sure what was published was accurate, you shouldn't rely on the accuracy and should instead read it in the US Code Book.