Cattlemen and Libertarians - Part 3

Black Rock Lava Flow, White Pine County, Nevada

If you haven't read the previous two installments in this series, now's a good time:

• Cattlemen and Libertarians
• Cattlemen and Libertarians - Part 2

In the previous two posts, I spent some time exploring the history of Nevada land ownership while using Cliven Bundy's case - now sort of settled, with the BLM "concluding the cattle gather", at least for the moment. One question that came to mind after exploring the Homestead Acts and the relatively permissive land claim regime in place until the 20th century was why, exactly, did nobody bother to claim most of Nevada's land? After all, mining activity was a constant through most of Nevada's history, and ranching clearly used the public land, so why didn't more people fence some off and keep it for themselves?

The short answer: Water.

The long answer, well...

The aforementioned Homestead Acts all had one goal in mind - spur American settlers to farm the west. Thomas Jefferson was famously pro-agriculture, and many other Founding Fathers shared his sentiment. To drive home the point of how serious they were about their advocacy, here's Benjamin Franklin on agriculture:

“There seem to be but three ways for a nation to acquire wealth. The first is by war, as the Romans did, in plundering their conquered neighbors. This is robbery. The second by commerce, which is generally cheating. The third by agriculture, the only honest way, wherein man receives a real increase of the seed thrown into the ground, in a kind of continual miracle, wrought by the hand of God in his favor, as a reward for his innocent life and his virtuous industry.” 

(Positions to be Examined, Concerning National Wealth, 1769)

Note that "commercial activity" - the simple act of selling goods and services to another individual - was frowned upon, a radical departure from modern sensibilities. At the time, this was a relatively new view of an old idea, one that dates back to Biblical exhortations supporting pastoral animal husbandry over the more settled farm and city life, and it shaped American land policy and politics well into the 20th century. In fact, due to agricultural labor requirements, the vast majority of Americans were farm workers - urban Americans didn't outnumber rural Americans until after World War 1. It wasn't until after the Civil War that urban Americans even accounted for a quarter of the United States' population. There were also political concerns to address, both geopolitical and domestic - widespread settlement and farming established the United States' hold on its existing territories and helped assume control over less-populated neighboring areas. Also, it's hard to go wrong, politically, pandering to addressing the needs of over 75% of your electorate. To that end, most of the 19th century was spent, politically speaking, attempting to serve the needs of current and future farmers of America, at least until the mechanization of agriculture created an economic and political crisis that nicely mirrors our own. Mining, on the other hand, was dirty, mechanical, and communal - even during the California Gold Rush, the idea of a lone miner wandering into a stream to make his fortune was largely apocryphal. Mining, especially using the technology and attitudes of the time, was a messy affair* that polluted indiscriminately downstream, left piles of dirt all over the place, required cooperation with finance to purchase the necessary machinery (a prerequisite that was largely frowned on through most of American history, especially after the Panic of 1819 and the rise of Andrew Jackson), and employed semi-nomadic ruffians that followed the ore instead of doing sensible things like planing roots in a local community, getting married, raising a barn, planting some crops, and supporting several farm-raised children. Consequently, national policy regarding mining was, at least initially, less than friendly, focusing more on preventing mining and its supporters in commerce from somehow siphoning wealth from the productive agricultural class while buoying the wealth of small farmers.

There were two innovations at the policy level that helped agriculture prosper at the expense of mining interests, at least initially. The first was the Land Acts, which allowed individuals to stake claims to large plots of land - at least 80 acres for purchase after the Land Act of 1820, with larger plots available for free upon the passage of the Donation Land Claim Act and the Homstead Acts. The second was the institution of private mineral rights. Because mineral rights in the United States were usually transferred with surface rights, mining companies often had to negotiate with several private land owners to secure the rights to a viable ore veins, complicating initial extraction efforts. Since all it took to disrupt operations was for a single surface owner to refuse to sell their mineral rights, the risk involved in setting up a mine in the United States was non-trivial.

Mexico's attitude regarding mining and private property, however, was very different. While the English settlers that colonized the United States displayed and almost worshipful reverence for agriculture, the Spanish settlers that initially colonized Mexico and the rest of Latin America were at least as interested in gold and other minerals as they were in agriculture and governed accordingly - this even-handedness led to silver being Mexico's primary export from the late 16th century until the 1870's and also led to New Spain having a significantly more industrial and urban character than the United States, at least until the political chaos in post-independence Mexico wiped out those gains. Mining in New Spain and Mexico was governed according to the Ordenanzas de Mineria, which declared that all mineral rights belonged to the sovereign and could be leased to miners in exchange for a cut of the profits. Since Mexico's revenue had fallen precipitously after independence owing to continual political and military strife, the Mexican government maintained a relatively laissez-faire attitude when dealing with prospectors in the country. Consequently, prospectors could simply stake a claim on some public land, register the claim with whatever local government official happened to be around at that moment, and get to work. In return, they provided a percentage of whatever they mined to the local and national government. The result, at least when the government was stable and cooperative, was a relatively quick and painless method for securing the right to extract minerals without dealing with the legal and procedural overhead of actual land ownership**. Better yet, at least from the point of view of the miner, even if a landowner had a claim on a particular piece of property, they lacked mineral rights - consequently, miners could legally tunnel under farms and other private surface property, provided they had permission from the sovereign.

After the Mexican-American War, the United States signed the Treaty of Guadalupe Hidalgo, which required the United States to honor original titles previously granted by Mexico. Though the United States' willingness to honor that clause was every bit as limited as Mexico's ability to enforce it***, the United States did find it in its best interests to preserve the original Mexican mineral rights regime in California, in which gold was discovered right after the signing of the treaty. Since a civilian American-style government hadn't been installed in California yet, miners adapted what legislative rules were present at the time and largely stuck to the practices established in the area by Mexico. This meant working on claims staked on public land, assigned on an informal first-come, first-serve basis, without contesting or attempting to otherwise claim title to the public lands via adverse possession or homesteading. From a practical standpoint, this was the only realistic solution - from 1847 until statehood was achieved in 1850, California was governed variously as a constituent part of Mexico's Alta California territory, to the Californio-led Bear Flag Republic, to a series of military governors that were primarily tasked with settling original Mexican land claims and pacifying the Native American populations. In short, nobody was around to confirm, record or transfer title, so it wouldn't have done the 49ers any good to try. Luckily, the original Spanish and Mexican mineral rights system was well-suited for the near-absence of government at the time****.

Despite the success of the Mexican-style mining regime in California, it took some time and debate before the United States formally accepted the practice. Once it did, though, the United States did so with gusto; with the passage of the General Mining Act of 1872, the United States decisively adopted leasing over parcel sales as the preferred method of managing mineral extraction on public lands. Though there was some movement to switch back to a private property-based approach, the Timber and Stone Act was swiftly abused and ultimately repealed. Once repealed, the window for mining interests to legally purchase public lands came to an end. This actually proved to be a benefit for the mining industry - since the General Mining Act of 1872 fixed mine claim fees without automatically adjusting for inflation, it's actually far cheaper these days for mining companies to pay the per-acre fees to the federal government than it would be to pay property taxes for private property. Furthermore, mines on public lands don't have to worry about finding buyers for non-productive land once the ore has been removed; even without the United States' current environmental laws, few people want to buy a tunnel-laced or pit mine scarred plot.

Even with modern mine reclamation, land in Nevada has one serious issue, at least if you want to do anything economically interesting on it beyond, "Build a house in the middle of nowhere and stare at the scenery" - there's no water. Going back to Cliven Bundy's case, he had roughly 1,000 cattle grazing on 600,000 acres, a density that the BLM viewed as threatening to local wildlife. That means that 600 acres can barely support one cow, which, if you look at land that appears something like this, sounds about right:

"No services next thousand miles", Michael McLeran, Stockvault.net

Part of the problem is that sagebrush is ordinarily toxic to cattle in a similar way that lactose is toxic to humans that lack the LCT gene, only there is no similar gene for cattle. Since sagebrush contains chemicals that are hostile to the bacteria in the guts of cattle, cattle will usually avoid it and will instead feed near-exclusively on the grass surrounding the sagebrush. This causes serious issues, especially in more arid climates like Southern Nevada, since cattle can eat all of the easy-to-digest food in an area, effectively clearing the way for sagebrush to overwhelm an area and prevent future grass growth. There has been some work recently to introduce a form of "sagebrush tolerance" into cattle, but it's still in experimental stages. Consequently, most of Nevada is sorely lacking in food that cattle will actually touch. Adding insult to injury, cattle also require water - not surprisingly, in a state that receives less than eight inches of precipitation annually, and especially in Southern Nevada where precipitation averages half of that, water is in very short supply. Though it's sometimes possible to tap underground aquifers to supplement virtually non-existent surface water supplies, they rarely refresh quickly enough to do much good, and even when they do, they're often stressed to the limit and beyond. Consequently, even if the BLM is wrong about its calculations and it's possible to support, say, two cattle on 600 acres near Bunkerville, that's still not nearly enough to economically support a Desert Lands Act homestead*****.

The big takeaway here is that, frankly, most of Nevada's land isn't capable of generating enough value on its own to pay for property taxes, much less support anything remotely economically interesting, unless there's ore underneath it - and once the ore is exhausted, the value of the land is also exhausted. Consequently, mines really don't want to own property in Nevada and ranchers can only afford land in Nevada if it's heavily subsidized. Given that the BLM's current fee of $1.35/animal/month was too rich for anyone in Bunkerville to pay (Cliven is the last cattle rancher in Clark County), it's pretty safe to conclude that, with or without BLM interference, most of Nevada's land is marginal at best. Even with today's technology, even if the BLM had the same attitude regarding land patents as the original General Land Office, most of Nevada is simply impossible to homestead.

Now, would private ownership of public lands potentially lead to innovative new uses for the land that don't involve agriculture, ranching or mining? Probably, and I think we should absolutely encourage that to happen. However, it's important to note that nobody's beating down the doors to make that happen, and for good reason.

* It's no accident that many Superfund sites in the west are former turn-of-the-century mine sites, like the Carson River and French Gulch. Environmental protections of the day boiled down to, "Is it water soluble?" and, regardless of the answer to that question, "Great! Toss it in the river and let God sort it out". Needless to say, this is a less-than-ideal way of disposing of toxic waste in a region that has no external drainage.

** Interestingly, the tables have turned on these regulatory approaches in the past 200 years. Private mineral rights might complicate mineral extraction efforts when compared to a willing sovereign and a supine surface population, but it also guarantees that some of the mineral profits end up in the hands of landowners, reducing the political threat of NIMBYism, and also reduces corruption by keeping mining fees out of government coffers. There are good arguments that the reason fracking took off faster in the United States than elsewhere is in part due to private mineral rights. Private mineral rights also make it significantly more difficult for populist governments to nationalize ore extraction industries, a common pastime in what used to be "mining friendly" Latin America.

*** It wasn't quite "none at all", but to call the record "mixed" would be giving Congress too much credit. As usual, it was the Native Americans that suffered the most. Note that, contrary to the popular "Columbus and the Spaniards were evil" narrative these days, the Spanish and Mexicans were downright progressive regarding aboriginal title and openly recognized the property rights of Native American tribes like the Pueblo in New Mexico; contrast this to the United States' policy of "Indian removal".

**** This historical example helps demonstrate that strong common law-backed property rights and anarchy, at least as defined as "the absence of publicly enforced state institutions", rarely play nice with each other. Remember that the next time you find yourself arguing with an Anarcho-Capitalist.

***** If you clicked that link, you'll discover that the Desert Lands Act hasn't been repealed and it's still technically possible to make a claim against the BLM for a homestead. Good luck coming up with a site that will meet their criteria, though. Also note that the Desert Lands Act requires cultivation to establish a homestead, not grazing, which requires even more water and effort.

Cattlemen and Libertarians - Part 2

Map of all federally owned land in the United States, Wikipedia

In my previous post, I discussed Cliven Bundy's ongoing struggles with the BLM, along with some context about why, exactly, Cliven's cattle were grazing on federal land in the first place. To quickly summarize, Cliven Bundy's family had been leasing federal range land for over 100 years - land which, for various reasons, was either never available to purchase due to homesteading restrictions or which wasn't viable to purchase due to extremely low lease rates offered by the federal government. Consequently, when the federal government changed the rules governing public land leases in the 1970's, increasing fees and imposing various environmental restrictions, it disrupted Cliven's business, along with other ranching and mining interests in Nevada. This disruption ultimately culminated in the Sagebrush Rebellion, Cliven's refusal to pay range lease fees starting in the 1990's, and the BLM's current attempts to effectively evict Cliven and his property from the BLM's lands. Those attempts, at least at present, are going all sorts of sideways right now due to a combination of fire-breathing bravado on the part of Cliven and his supporters and some heavy handed attempts by the BLM to manage the situation. It doesn't help that some supporters of the BLM are using the opportunity to publicly voice some explicitly anti-rural sentiments, which Ralston Reports highlights here:

One day after Clark County Commissioner Tom Collins referred to some Utahns as "inbred bastards" and warned of violence if they came to support rogue rancher Cliven Bundy, his colleagues were mulling whether it's time for an intervention.

Collins' bellicose comments were first exposed on a website designed to support Bundy. Collins confirmed to me that he made the comments to Piute County Commissioner Darin Bushman, but said he was only concerned about violence.

The tweets were about what you would expect from an extremely frustrated County Commissioner who should know better than to tweet while angry, which means they alternative between being laughably ridiculous and blatantly chauvinistic. All of the emotion and sound and fury surrounding Cliven and his cattle, however, obscures a much bigger issue:

Why does the federal government own 86% of Nevada's land?

The answer to that question can be found in the Nevada Enabling Acts of 1864:

Sec. 4. Authorization to form constitution and state government; limitations. And be it further enacted,
[...]

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; and that the lands belonging to citizens of the United States residing without the said state shall never be taxed higher than the land belonging to the residents thereof; and that no taxes shall be imposed by said state on lands or property therein belonging to, or which may hereafter be purchased by, the United States. 

Since Nevada's population upon statehood was less than 50,000 and since most of Nevada's lands were far too dry and marginal to homestead with the 160 acre lots assigned at the time, the vast majority of Nevada's land remained unclaimed and thus in the hands of the federal government, which received title to the land after the Mexican-American War and the signing of the Treaty of Guadalupe Hidalgo.

However, to understand how the federal government ended up with any land, we have to go even further back, to the Northwest Ordinance. The Northwest Ordinance settled competing and often overlapping colonial claims to the frontier* by ceding all lands west of the Appalachians and north of the Ohio River to the federal government. This set the stage for the Land Ordinance of 1785, which marked the federal government's first efforts toward establishing a method of homesteading and organizing the new territories into states**. This precedent was further supported following the Louisiana Purchase, after which the federal government found itself in ownership of over 828,000 square miles of additional territory, minus whatever was already claimed by the existing inhabitants***.

With the precedent of federal ownership of unclaimed land set, it was then time to further refine how the land was to be disposed. The Land Act of 1804 loosened credit and minimum plot size requirements, which sparked strong enough land sales to, at one point, help completely pay off the federal debt. The Preemption Act of 1841 took things a step further and declared that settlers could show up and immediately lay claim to homesteads by simply squatting on the land - all they had to do was build some improvements and pay a nominal fee within a year.

To the states, meanwhile, the original Land Ordinance of 1785 also set aside portions of land for the purpose of building schools, government buildings, roads, and so forth. Additionally, Pollard's Lessee v. Hagan established the oft-cited Equal Footing Doctrine:

The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively, and the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States. (emphasis added)

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 of the 30th April, 1803, with the French Republic ceding Louisiana.

Upon the admission of Alabama into the union, the right of eminent domain, which had been temporarily held by the United States, passed to the State. Nothing remained in the United States but the public lands.

The United States now hold the public lands in the new States by force of the deeds of cession and the statutes connected with them, and not by any municipal sovereignty which it may be supposed they possess or have received by compact with the new States for that particular purpose.

That part of the compact respecting the public lands is nothing more than the exercise of a constitutional power vested in Congress, and would have been binding on the people of the new States whether they consented to be bound or not. (Emphasis added)

There are a number of key points established by Pollard v. Hagan:

• All lands within a state boundary are subject to the sovereignty and jurisdiction of the state.
• Any navigable waters, and the soils under them, are explicitly reserved to the state.
• Federal land claims are valid regardless of state or local claims to the contrary.

In short, once a territory becomes a state, all existing federal land claims remain in force regardless of the state's feelings on the subject, but the federal lands are bound within the legal jurisdiction of the state. To give a hypothetical example of what this might mean, if federal law legalized marijuana but Utah state law expressly prohibited it, a person couldn't wander on to federal land and light a joint without potentially running afoul of Utah state law. It also means that the federal government can't exercise eminent domain and seize new federal property within a state once a state has been established; however, since federal land claims must be respected, states can't, in turn, seize federal land via eminent domain in return.

That last part is important - we'll come back to that.

Circling back to Nevada, the Nevada Enabling Acts of 1864 set aside the following lands for state use:

Sec. 7. Grant of public lands for support of common schools. And be it further enacted, That sections numbers sixteen and thirty-six, in every township, and where such sections have been sold or otherwise disposed of by any act of congress, other lands equivalent thereto in legal subdivisions of not less than one quarter-section, and as contiguous as may be, shall be, and are hereby, granted to said state for the support of common schools. 

Sec. 8. Grant of lands to state for erecting public buildings. And be it further enacted, That provided the state of Nevada shall be admitted into the Union, in accordance with the foregoing provisions of this act, that twenty entire sections of the unappropriated public lands within said state, to be selected and located by direction of the legislature thereof, on or before the first day of January, anno Domini eighteen hundred and sixty-eight, shall be, and they are hereby, granted, in legal subdivisions of not less than one hundred and sixty acres, to said state, for the purpose of erecting public buildings at the capital of said state, for legislative and judicial purposes, in such manner as the legislature shall prescribe. 

Sec. 9. Grant of lands to state for erecting state prison. And be it further enacted, That twenty other entire sections of land, as aforesaid, to be selected and located as aforesaid, in legal subdivisions, as aforesaid, shall be, and they are hereby, granted to said state for the purpose of erecting a suitable building for a penitentiary or state prison in the manner aforesaid.

The bulk of the land apportioned to the state of Nevada came from Section 7 - unfortunately, as detailed in an excellent article by the Reno News & Review, Nevada wasn't a particularly fastidious steward:

The way the system worked when Nevada entered the union was that a state received parcels 16 and 36 in every township as school trust lands. A township is six miles by six miles and contains 36 sections. In Nevada, according to Columbia University education scholar Fletcher Harper Swift, that worked out to 3,992,000 acres. (Arizona, New Mexico and Utah, because of their arid climates, received four sections each. It is not known why Nevada was not included in this group.****) These lands, when used to generate revenue for schools, were tax free—that is, federal fees and royalties were not collected on the lands. 

[...] 

The first thing that reduced Nevada’s share of trust lands, other than straight sales that were small in number, was dissatisfaction by state leaders with the designated lands. The state sought to exchange them for better lands, though they were not actually well informed on what the existing lands were because so little of the state had yet been surveyed. In other words, they didn’t know everything they were giving away. And Nevada was seeking a remedy for a problem that, from the federal point of view, had already been remedied by doubling the amount of land given to western states. So Nevada officials agreed to accept 2 million acres of federal lands of their choice. If this arrangement was allowed, Nevada—and only Nevada—would be getting a deal no other state was given, and there was objection to it on the floor of Congress. Nevada, after all, was trying to circumvent the planned randomness of the township program that every other state complied with. But by that time Nevada had sold 70,000 acres and realized little if any income from the rest, and Congress approved the exchange. No other state ever got a similar deal.

That deal quickly halved the amount of land granted to Nevada. Of the remaining 2,000,000 acres, less than 3,000 acres remain today after over a century of gross mismanagement and embezzlement:

The problem of shaky management was well enough known that the elected office of Nevada surveyor general was in poor repute, and there were attempts to shut it down. The surveyor general administered state lands. In 1937, Churchill County Assemblymember Claude Smith’s legislation to abolish the office, endorsed by Gov. Richard Kirman, nearly passed. In 1954 Nevada voters approved a measure changing the office of surveyor general from a constitutional to a statutory office, making it easier for the legislature to eliminate the office. 

That should have telegraphed a message to incumbent Surveyor General Louis Ferrari, but another experience that reduced Nevada’s acreage followed—a 1955-1957 scandal when Ferrari was the target of a grand jury investigation into sweetheart sales of land, particularly in the state’s new growth area of Las Vegas, in collaboration with state legislators. The Legislative Commission, with the assistance of Ormsby County District Attorney Cameron Batjer and grand jury foreperson E.H. Hiller, prepared for impeachment (recommended by the jury) of Ferrari by the 1957 Nevada Legislature. In the end the lawmakers stopped short of impeaching Ferrari, settling for finally abolishing his job, which went out of existence on July 1. The legislature then shifted administration of the trust lands to the Nevada Division of State Lands, where it remains today, and management of the income is handled by the state treasurer with accountancy by the state controller. In addition, the lawmakers beefed up the protections involved in the sale of state school trust lands. 

In an attempt to undo the damage caused by decades of corrupt mismanagement while simultaneously riding the political waves created by the Sagebrush Rebellion, Nevada politicians lobbied successfully to amend the State Constitution in 1996, starting with the Senate in 1993 and the Legislature in 1995:

SENATE JOINT RESOLUTION–Proposing to amend the ordinance of the Nevada constitution to repeal the disclaimer of interest of the state in unappropriated public lands.

      WHEREAS, The State of Nevada has a strong moral claim upon the public land retained by the Federal Government within Nevada’s borders; and
      WHEREAS, On October 31, 1864, the Territory of Nevada was admitted to statehood on the condition that it forever disclaim all right and title to unappropriated public land within its boundaries; and
      WHEREAS, Nevada received the least amount of land, 2,572,478 acres, and the smallest percentage of its total area, 3.9 percent, of the land grant states in the Far West admitted after 1864, while states of comparable location and soil, including Arizona, New Mexico and Utah, received approximately 11 percent of their total area in federal land grants; and
      WHEREAS, The State of Texas, when admitted to the Union in 1845, retained ownership of all unappropriated land within its borders; and
      WHEREAS, The federal holdings in the State of Nevada constitute 86.7 percent of the area of the state, and in Esmeralda, Lincoln, Mineral, Nye and White Pine counties the Federal Government controls from 97 to 99 percent of the land; and
      WHEREAS, The federal jurisdiction over the public domain is shared among several federal agencies or departments which causes problems concerning the proper management of the land and disrupts the normal relationship between a state, its residents and its property; and
      WHEREAS, The intent of the framers of the Constitution of the United States was to guarantee to each of the states sovereignty over all matters within its boundaries except for those powers specifically granted to the United States as agent of the states; and
      WHEREAS, The exercise of dominion and control of the public lands within the State of Nevada by the United States works a severe, continuous and debilitating hardship upon the people of the State of Nevada; now, therefore, be it
      RESOLVED BY THE SENATE AND ASSEMBLY OF THE STATE OF NEVADA, JOINTLY, That the ordinance of the constitution of the State of Nevada be amended to read as follows:
      In obedience to the requirements of an act of the Congress of the United States, approved March twenty-first, A.D. eighteen hundred and sixty-four, to enable the people of Nevada to form a constitution and state government, this convention, elected and convened in obedience to said enabling act, do ordain as follows, and this ordinance shall be irrevocable, without the consent of the United States and the people of the State of Nevada:
      First.  That there shall be in this state neither slavery nor involuntary servitude, otherwise than in the punishment for crimes, whereof the party shall have been duly convicted.
      Second.  That perfect toleration of religious sentiment shall be secured, and no inhabitant of said state shall ever be molested, in person or property, on account of his or her mode of religious worship.
      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; and that] lands belonging to citizens of the United States, residing without the said state, shall never be taxed higher than the land belonging to the residents thereof; and that no taxes shall be imposed by said state on lands or property therein belonging to, or which may hereafter be purchased by, the United States, unless otherwise provided by the Congress of the United States.
And be it further
      RESOLVED, That the Legislature of the State of Nevada hereby urges the Congress of the United States to consent to the amendment of the ordinance of the Nevada constitution to remove the disclaimer concerning the right of the Federal Government to sole and entire disposition of the unappropriated public lands in Nevada; and be it further
      RESOLVED, That, upon approval and ratification of the amendment proposed by this resolution by the people of the State of Nevada, copies of this resolution be prepared and transmitted by the Secretary of the Senate to the Vice President of the United States as presiding officer of the Senate, the Speaker of the House of Representatives and each member of the Nevada Congressional Delegation; and be it further
      RESOLVED, That this resolution becomes effective upon passage and approval, except that, notwithstanding any other provision of law, the proposed amendment to the ordinance of the constitution of the State of Nevada, if approved and ratified by the people of the State of Nevada, does not become effective until the Congress of the United States consents to the amendment or upon a legal determination that such consent is not necessary.

Note that, in the resolution itself, Nevada explicitly requests the consent of Congress, indicating that even Nevada's legislators concede that Congress' permission is required for this measure to take effect. To date, that has not happened. In fact, without Congressional authorization, Nevada would have to apply eminent domain against the federal government in order to claim title to federal lands, which is, to put it plainly, unlikely to succeed. This is especially true since, while Pollard v. Hagan created the "equal footing" doctrine, it also explicitly states that respecting federal claim to unclaimed public lands is binding whether the people wish to be bound by that claim or not. That's not to say Congress has taken no recent action regarding Nevada's public lands - in 1998, the BLM was authorized to sell public land around Las Vegas through the Southern Nevada Public Land Management Act. Though some of the proceeds from the sale go to state and county agencies in Nevada (5% goes to statewide education, while 10% goes to the Southern Nevada Water Authority), none of the land was explicitly transferred to the State of Nevada.

So, getting back to the original question - why does the federal government own 86% of Nevada's land? - the answer is because few bothered to claim it while the federal government was willing to part with it and, adding insult to injury, the State of Nevada gave 2,000,000 acres back after statehood. Given recent federal policy regarding wilderness management and the increasing need to maintain federal leasing revenues at a time of significant budget deficits, don't expect that percentage to move anytime soon.

This, however, raises (hopefully one last) important question:

Why didn't anyone claim Nevada's land after statehood?

Until next time...

* A curious historical remnant of the original colonial claims is Case Western Reserve University, which was established in territory that was once part of the Connecticut Western Reserve.

** Note that both the Land Ordinance of 1785 and the Northwest Ordinance precede the Constitution's ratification in 1790.

*** European inhabitants, that is. Native American property rights were, as usual, consistently ignored.

**** Note that Arizona (1912), New Mexico (1912), and Utah (1896) all became states decades after Nevada. Since Nevada had already liquidated 2/3 of its land allotment by the time these three states formally became states, it's possible that the federal government had learned from Nevada's example that desert lands weren't going to be worth as much as more temperate trust lands, no matter how many irrigation canals were dug, and adjusted accordingly.

Cattlemen and Libertarians

Fire on the Mountain, Donnie Shackleford, Stockvault

For the past couple of days, my libertarian-leaning friends in Clark County have been inundating my social media feeds about Cliven Bundy and his cattle:

A Nevada rancher's threat to wage a "range war" with the federal Bureau of Land Management precipitated a standoff today between supporters of the embattled rancher, Cliven Bundy, and law enforcement officials.

Bundy posted a statement on the Bundy Ranch website on Sunday night saying: "They have my cattle and now they have one of my boys. Range War begins tomorrow."

He invited supporters to show up this morning on his property, about 80 miles northeast of Las Vegas, near Bunkerville, just west of the Utah state line.

Another excellent article on the subject can be found courtesy of 8 News Now's I-Team:

BUNKERVILLE, Nev. -- Dozens of armed federal officers are preparing for a showdown with a Nevada cattle rancher regarded by some as an outlaw and a hero by others.

Rangers and agents from several federal agencies have surrounded a 600,000-acre section of public land and are preparing to move against rancher Cliven Bundy whose cattle have been grazing illegally for the past 20 years.

[...]

Bundy has had a long time to sharpen his message. The fight has been building since 1993, when the Bureau of Land Management changed grazing rules for Gold Butte to protect the endangered desert tortoise.

Bundy refused to go along and stopped paying his fees. Since then, the BLM and federal courts have ordered him to stop letting his cattle roam throughout Gold Butte, and he has ignored the orders because he does not recognize federal authority over the land.

"My forefathers have been up and down the Virgin Valley ever since 1877. All these rights I claim have been created through pre-emptive rights and beneficial use of the forage and water. I have been here longer. My rights are before the BLM even existed," Bundy said.

The Bundy family was already ranching here long before the Department of Interior was born, and long before tortoises were protected. But federal courts say he doesn't have a legal leg to stand on. BLM has long sidestepped the fight in part because of concerns about what might happen, if it tried to round up his 500 or so cattle that even now are grazing on forbidden public lands.

Read the whole thing - it's an excellent and reasonably evenhanded analysis of the situation out there.

To quickly summarize the situation, Cliven Bundy's family has been supporting cattle on a 600,000 acre stretch of federally owned land south of the Virgin River (map) since the tail end of Reconstruction. Back in the 1990's, however, the federal government began to severely restrict land use on public lands, even more so than they had historically - these restrictions ultimately led to a heating up of the Sagebrush Rebellion and the Jarbidge Shovel Brigade, among other acts of protest. In Cliven's case, this led to the BLM restricting access to Gold Butte, Cliven refusing to acknowledge this restriction, then two decades of court cases that have more or less consistently gone against Cliven each and every time. Now, driven in part by a potential suit against the BLM by environmental groups for failing to properly enforce the court ordered restrictions on Gold Butte, the BLM and the federal government have started to seize the cattle that Cliven left to graze on BLM property.

As often happens with situations like this, there's the small picture - the issue of Cliven and his cattle - and the larger picture. At a base level, the simple truth here is that Cliven and his family wouldn't be losing their cattle at all if they purchased the land that their cattle have been grazing for several years. Since Cliven does not own Gold Butte, it's up to the landowner - in this case, the BLM, which "inherited" the land from the General Land Office, whose existence can be traced back to The Land Ordinance of 1785 - to decide how to properly dispose of that property, and the landowner has decided that it would rather have tortoises on Gold Butte than cattle. One can stop their analysis of the situation here - and I did, at least for a little while - and safely conclude that Cliven is wrong, the BLM is right, and the BLM is well within their rights to defend their interests in their property by any means necessary.

But there's a catch - did Cliven's family ever have the opportunity to claim title to the land?

The answer to that questions is probably "no". Both the Desert Land Act and the Stock-Raising Homestead Act limited homestead claims to 640 acres; even if the Bundy family worked together to stake several claims, it would take over a thousand family members building shacks in the desert to successfully claim that much land. Furthermore, the federal government generally avoided selling range land outside of Homestead Act-style provisions to avoid charges of corruption. Finally, the federal government transitioned from homesteading public lands to leasing them in the 1920's with the Pickett Act and the Mineral Leasing Act of 1920. However, federal leasing requirements were relatively lax, at least initially - the US Forest Service and  US Grazing Service preferred to maintain a relatively "hands off" attitude regarding leasing fees and restrictions, lest they earn the legislative ire of powerful rural Senators and Congressmen. Consequently, the Bundy family undoubtedly assumed, and rightfully so at the time, that it was better to pay the federal government a nominal lease fee every 10 years than it was to own the property outright and pay Nevada property taxes.

Unfortunately, as so often happens when you rent, your landlord can change their mind - they can raise the rent, they can decide to use the property for something else, or they can just evict you because they think you haven't been a good tenant. In the case of Cliven's cattle ranch, as well as several other agricultural and mining operations in Nevada, all three happened more or less simultaneously when the federal government transitioned from an economically driven land management regime to an environmentally driven one.

In short, no, the Bundy family almost certainly did not have any opportunity to buy their range outright; even if they did, it probably made solid economic sense for over 100 years to let the federal government manage the land and lease it at extremely low rates instead.

However, that's not the end of the discussion - how did the federal government in general, and the BLM in particular, end up with 600,000 acres of range in the first place? I'll go into that in my next article.

An Older Man and a Young, Impressionable Woman

AV Club recently finished their retrospective review of the new Doctor Who's 2nd Season, which is as far as I've made it into the "new" series myself. Since the theme of the season was the nature and lasting power of 10/Rose's relationship, especially as the season moved along, I figured I might as well do the fashionable thing and chime in on the relationship as well. Granted, it's been several years since the season was initially released, so I doubt I'm going to break any new ground here, but better late than never, I suppose.

At its core, Rose's relationship with the 10th Doctor was pretty straightforward - he's an older (about 700 years older, more or less), well-traveled gentleman and she's a young, impressionable woman. Rose loves the Doctor in a near-obsessive, all-consuming way, the way a teenager falls in love with someone. She wasn't just willing to sacrifice her previous life - her family, her friends, her job, her neighborhood, everything - for the Doctor, she actively encouraged him, practically begging, to take her up on it. The 9th Doctor was reluctant to do that; he cared for Rose the way an father-figure or an older brother might, at least until the end, and attempted to preserve some distance between the two. The 10th Doctor, however, actively reveled in the attention in the same way that a 40+-year-old millionaire might appreciate the unbalanced devotion of a pretty 18-year-old - he enjoyed the way she made him feel, the way she encouraged instigated his long-forgotten, more youthful tendencies (hence the running gag with Queen Victoria in "Tooth and Claw"), and rewarded her accordingly.

Unfortunately, at least for Rose, the Doctor had 700 years of perspective to draw from. He could never feel the same way about Rose that Rose felt about the Doctor because the Doctor ultimately had a life outside of Rose. Rose's entire existence had become co-dependently wrapped around the Doctor's - she lived exclusively for him. The Doctor, however, had a life before Rose and he knew that he would have a life after Rose. Sooner or later, the relationship had to end, either through death, boredom, or Rose getting sucked into a parallel universe. The writing was on the wall after the "The Girl In The Fireplace" - as fun and eager and complimentary as Rose might have been, she would never be an intellectual equal to the Doctor, someone that he would be able to look at eye-to-eye and experience attraction from that connection. When the Doctor found the Madame de Pompadour, and when she clearly expressed interest in him, his reaction was not that of a man guilty of betraying a lover but instead a man lost in a desert, enjoying a rare, satisfying drink. Without the Doctor, the Madame de Pompadour was still the mistress of the King of France - Rose, however, saw herself as nothing without the Doctor and they both felt that acutely.

In the end, for Rose's health as well as the Doctor's, the relationship needed to end. Rose needed an opportunity to discover that there is life after the Doctor, though I wouldn't be especially surprised if, like a lot of people that endlessly yearn for a particularly intense, lost love, she never really recovers. The Doctor, meanwhile, needs someone that he can respect and can look him in the eye, someone that can hold him more or less responsible for his actions.

Now to see if he finds that in season 3.

Ikraine, Ukraine, we all scream for...

Crimea, Kerch - Shutterstock

Ah, the Ukraine - home to one of the more fetching politicians in recent memory, along with a few thousand Russian troops that have suddenly taken up residence in the Crimea. So, what should the United States do about it?

Well, before we answer that question, let's establish some background information:

• The Ukraine, or more specifically, Kievan Rus, is a foundational part of Russian identity. It was the power center of what passed for the Russian state before the Mongol invasion in the 14th century.
• The Ukraine, in its current form as a national entity separate from Russia, didn't exist until after the Treaty of Brest-Livotsk created it to better secure Ukrainian grain supplies for the German military.
• Russia has fought to secure and retain the Crimean peninsula more or less constantly since the 16th century, starting with the Russo-Crimean Wars that initially secured the peninsula from the Tatars (Turks, more or less), followed by the Crimean War, which didn't go well for anyone involved but definitely didn't go well for Russia, then followed by the Crimean Campaign in World War 2 and the counter-invasion.

Conceptually, the Ukraine's existence, at least in certain Russian minds, would be similar to how Americans would feel if the British "liberated" New England in the War of 1812 and it eventually turned into its own country. The story of the Pilgrims landing at Plymouth Rock is a key part of the history of the establishment of the United States, along with the battles of Lexington and Concord - even if New England somehow became its own country, even if New England really wanted to remain its own country (and, after the Holodomor, the Ukraine really wants to remain its own country - that's a big part of the reason there were so many Nazi sympathizers in the Ukraine to begin with), it'd be very difficult for the rest of the United States to really respect that or see things that way. This would be doubly true if the United States built a rather important naval base in, say, Rhode Island and built a "company town" around the base that was filled with Americans.

Now that we have the mindset established, it shouldn't be hard to understand why Russia doesn't take Ukraine's independence particularly seriously, along with why Russia feels perfectly comfortable invading the Ukraine's version of our hypothetical Rhode Island. It also shouldn't be hard to grasp that, if someone were to attempt to guarantee the independence and integrity of our hypothetical New England, we probably wouldn't take it well - from our position, New England is an integral part of the identity and territory of the United States, regardless of how our hypothetical New Englanders might view the situation. If a few Bostonians want to riot against our cause, well, tough - they're supposed to be Americans, damn it, and if they think we're going to let anyone help them forget that, they're going to be in for an unpleasant surprise. A nuclear surprise, if necessary.

This is why Ukraine is screwed. 

Russia cares about the Ukraine far more than anyone else in the world does, including us. Russia - or at least those currently in power in Russia - are willing to go all in to get what it wants out of the Ukraine because, from their perspective, the Ukraine shouldn't be a country in the first place. Since Russia doesn't have the means to occupy all of the Ukraine, they probably won't, but they'll definitely "liberate" the parts of the Ukraine that are more or less amenable to Russian rule (the Crimea definitely fits) and there's not a thing the Ukraine or anyone else will be allowed to do to stop it. Putin will happily endure any embargo, any diplomatic tut-tutting, in return for bringing the Ukraine back into the fold - and by "happily endure", I mean Putin will happily remind everyone that if they even think of crossing him in any meaningful way on this subject, he'll make it his personal mission to make everyone else on the planet miserable. Russia, for all its myriad problems, still possesses the means to make the world an obnoxiously difficult place - I wouldn't put it past him to release a few nuclear weapons to Iran and North Korea, or at least threaten it behind closed doors should anyone suddenly feel brave enough to stand up to him on this.

To answer the original question - what should the United States do about this - we need to ask ourselves, How far are we really willing to go? In my mind, unless we're willing to go all the way to DEFCON 1, which we're not, we should just close our eyes, cover our ears, and accept that not all stories have a happy ending. Besides, it's none of our business anyway.

GMOs - Evil or Genocidal?

Image courtesy of Stockvault

In what can best be described as a "man bites dog" story, the normally reflexively crunchy-liberal Reno News & Review published as their front page article, "The organic food lie: What's up with this liberal war on science?":

The crowd stretched entirely around the front of the downtown Reno federal building. 

Protest signs attacked transgenic food. “Your food—brought to you by the makers of AGENT ORANGE.” “It’s a SAD day when ’NORMAL’ food is hard to find!” “HELL NO GMOS.” There were also angrier signs attacking Monsanto, and for other causes—Native American, veterans, the National Defense Authorization Act. 

It would have been easy to assume this was a group of flat earthers, and I suspect they were being characterized that way by plenty of observers on this day of coast-to-coast anti-transgenic food protests. But I knew some of these people as smart and sensible. Like a lot of science-oriented people, I didn’t understand why some of them were present. This was another sortie in what scientists have begun calling “The Liberal War on Science.” 

Many in this crowd cite the fact that there’s no known instance in history of death caused by marijuana but endless deaths caused by booze and tobacco. But they reject the fact that no one is known to have ever died from transgenic foods but plenty of people in history have died from natural, organic foods through salmonella, E. coli., etc. “Transgenic” is the scientific term for what activists call genetically modified food or organisms—GMOs. 

Many of those present are frustrated by the refusal of climate change critics to accept the findings of a scientific panel that has examined all the science and found that climate change is real and mostly caused by human activity. But most of them ignore the findings of a similar panel that upheld the safety and usefulness of transgenic foods (www.nap.edu/catalog.php?record_id=10977#toc).

Read the whole thing.

The RN&R isn't the first publication to wonder about this - The American Interest has published a number of editorials touching on the irony of "pro-science" liberals suddenly fighting the scientific consensus when it doesn't go their way. However, it's as good of a spot as any to discuss the topic of GMO food labeling.

The argument for mandatory, government-led GMO food labeling goes something like this:

• Genetically modified organisms (GMOs) are poisonous and evil.
• Government requires food producers to label other poisons in their food, so GMOs should be no exception.
• If people learn the truth about what's really in their food, they will stop buying GMO food, Monsanto will go bankrupt, and everyone will buy organic. The end.

This argument, however, assumes a false dichotomy: GMO Frankenfoods vs. All-Natural God & Gaia Fearing Organic Produce (available from Whole Foods or, better yet, the locally owned neighborhood co-op). The truth is, there are actually three kinds of foods:

• GMOs - they require fewer chemical inputs and are thus cheaper!
• Non-GMOs grown with the best chemical pesticides and fertilizers the Green Revolution has to offer, along with all of the well documented environmental side-effects tied to overuse of those chemicals. These were cheap enough to feed India and China in the '70s, and, depending on your age, would be what you or your parents were raised on while watching Scooby-Doo.
• Organic produce, which is more expensive since it produces lower yields per acre.

So, if GMO foods are labeled, people are going to be faced with three choices - cheap GMO-labeled food, slightly less cheap but unlabeled chemical-marinaded food, and already labeled and expensive organic food. Since we know that most people in America shop for food based on price (hence why Walmart's market cap is roughly 10 times Whole Foods'), we can safely assume that, if people actually do avoid GMO foods the way activists hope they will, most Americans will instead preferentially shop for the produce of the Nixon and Reagan administrations. How this will benefit the environment is anyone's guess, especially since we already know full well what high-chemical agriculture does to the environment. 

For that reason alone - without getting into the effectiveness of government food labeling programs, the added costs required to ensure compliance with such a regimen, the wisdom and morality of imposing upper-middle class consumption sensitivities on those least able to afford them, and so on - anti-GMO activists should seriously rethink their strategy if they care about the health and safety of the environment.

In Remembrance of James "Libertarian" Burns

Like many in the Libertarian community, I learned that James "Libertarian" Burns passed away weeks after he actually did so. This wasn't a huge surprise - he's been struggling with some serious health issues for over a year now. Nor was it a tremendous surprise that it took a month to find out about his passing; for someone so consistently outspoken about whatever was near and dear to him, he was a very private individual. Even so, learning of his passing hit me hard. That's why I wanted to kick off his memorial at the Libertarian Party of Nevada's State Convention and why I want to take a moment to reflect on how his life touched mine and how his presence will be missed.

When I first started getting active in the Libertarian Party in Nevada - seriously active at the state level, not just showing up to a few college and local events like I used to - one of the first people that introduced themselves to me at my first state convention was Jim Burns. He handed me a pamphlet, a tri-fold black and white on glossy paper, that detailed in tiny print and unerring exactness what he was going to do if he was elected to President of the United States. It was incredibly detailed, pie-in-the-sky Libertarian true believer agitprop - he was going to end the Fed, abolish all income taxes, eliminate pretty much any and every government agency he could list by name, send all the troops home, you name it. I remember looking through it incredulously. Later in the convention, I watched him attempt to run for Central Regional Representative for the state Executive Committee, only to lose to "None of the Above" twice. He was clearly distraught - here was a man that was campaigning for the 2012 Presidential nomination in 2008 and he couldn't even get elected to a near-meaningless state Libertarian Party position when running unopposed. What amazed me, though, was that, though he was clearly defeated and left not long after failing to secure the Executive Committee seat, his demeanor was not the demeanor of a defeated man. It was clear that he would be back, on his own terms, and ready to say or do whatever he felt needed to be said and done at the next convention.

I was impressed. A little confused, but impressed. I made sure we swapped contact information by the end of the convention.

It didn't take long before he started calling me. In preparation for the 2010 Senate race - the one that Senator Reid ultimately won - Jim Burns started actively campaigning throughout the state well in advance of the nomination convention. Though I didn't personally agree with his particular flavor of Libertarianism - I found it a little too old-school and dogmatic for my personal taste - I appreciated the fact that he was actually asking for my vote, instead of assuming it by default*. Consequently, I supported his efforts even when many around me refused to do so.

I'm glad I did - that loyalty was rewarded and then some.

In 2011, the local Libertarian Party chapter that represented Washoe County was disaffiliated for the second time in three years. In the process, I found myself largely shut out and isolated, in no small part due to some unfortunate choices on my end. One person, however, refused to give up on me and refused to let me give up on myself. That person was James Libertarian Burns. When most people in the Libertarian Party of Nevada refused to talk on the phone with me, he was always ready with a phone call, an inspirational speech, and a call to action. He was not going to let me go silently into the night - not if he had anything to say about it. For over a year, we discussed various harebrained schemes to reclaim the Libertarian Party of Nevada, each more implausible than the last. I knew deep down that all of the plans were doomed to failure - they required considerable capital outlays and a uniquely "libertarian" interpretation of existing campaign finance reform laws - but it didn't matter. Discussing the plans and putting them on the table gave each of us hope and, in the end, that's all that really mattered. That hope, and the circumstances that made that hope necessary, made us allies and brought us together.

It took a while, but our hope eventually paid off. It took our current chair, Brett Pojunis, getting effectively expelled from the Executive Committee himself, but we were finally brought in out of the cold. At our 2013 convention in November, I pushed to place the preamble from Jim Burns' draft bylaws into our own and succeeded:

People should be allowed to live as they choose so long as they neither initiate violence, coercion, nor engage in theft or fraud. We adopt the Statement of Principles of the National Libertarian Party.

It wasn't hard - it was a better preamble than anything anybody else came up with. It encapsulated the ideals and convictions the bylaws were designed to facilitate with the least adornment and effort possible. Even so, when the amendment to place his preamble into our bylaws was passed without objection, the look on his face told me everything that needed to be said - his struggle was done. In the end, he had won.

Looking back, I'm immensely grateful that I was able to help him witness part of his vision coming to life. I'm grateful that I was able to show him that his opinion was respected in the Libertarian Party once more. My only regret was that he wasn't able to continue to witness the hard-earned fruits of his labor of love, if only for a little longer.

James Libertarian Burns, you will be missed. Thank you for everything.

* Unlike major parties, the Libertarian Party chooses its candidates almost exclusively through conventions. Because there are never anywhere near as many Libertarian candidates interested in running for office as there are available partisan offices, oftentimes by several orders of magnitude, Libertarian Party nominations are effectively handed out in a "first come, first serve" manner.