Blog Archives
Ken Ivory’s Duty to Dispose federal land doesn’t hold water
On March 23, 2012 Governor Gary Herbert singed H.B. 148 into law. The Transfer of Public Lands Act was sponsored by Utah Rep. Ken Ivory, largely unknown until recent events in Bunkerville, Nevada and Blanding, Utah shot him into the limelight. He is the man of the hour for states’ rights proponents. After watching the debate in Salt Lake City about who should manage public lands I wondered if Ivory had a legitimate case and started looking into the arguments in favor of state takeover of public lands. But while Ivory’s argument seemed credible on the surface, after digging into the history and law of public lands, I don’t believe it holds water.
Ken Ivory, photo courtesy of Scott Sommerdorf at the Salt Lake Tribune
In order to understand the articulate and legal language used by Ken Ivory in his defense of transferring public lands to the state, you have to understand what he is arguing. Ken Ivory believes that the Enabling Act was a compact, whereby both parties were to get and give something, that it was a two way street. This is true, but not the way he is arguing it. He is proposing a legal theory: that the U.S. had a duty to dispose of federal lands (2). To put another way, he states that the U.S. promised to give the land to the states upon entry into the Union. In today’s world, this sounds legitimate, but when you dig into the history, you see that Ivory is ascribing intentions on historical parties that were never there. In other words, he is rewriting history.
Photo courtesy of farm land grab
Why would he do this? Because there is great wealth in those lands and he has come up with a novel way to argue for control of them. According to a recent article in The New American, “Utah State Rep. Ken Ivory, one of the summit organizers, noted that there is an estimated $150 trillion in mineral resources “locked up in federal lands” across the West (4).” That’s a big reason to wrest control of those lands. Of course no one knew this in the late 1800s, but if Ivory can make it appear that way, maybe the courts will relent. Surely the people of the Utah territory must have realized those lands would be worth something at some time and would have demanded they eventually be turned over, right? Probably not.
While this might fool Utah constituents, I doubt it will fool the courts.
First, let’s look at the idea of the Enabling Act being a compact between the state of Utah and the U.S. government. There is some truth to that. In order to be admitted into the Union Utah had to comply with conditions required for statehood to demonstrate their loyalty and to show they would become “Americanized.” Because the Utah territory was run by the Mormon Church, their loyalty was in question. The issue of polygamy and Mormon political power could also be seen as an issue of trust and loyalty; as one anti-Mormon advocate wrote in 1869: “It is time to understand whether the authority of the nation or the authority of Brigham Young is the supreme power in Utah.” Critics of the Mormon Church saw it as a potentially disloyal body that could not be trusted with control over a state government (1).
As a territory, they were under the plenary power of Congress which meant Congress could use legislation to suppress polygamy and even the Mormon Church itself, and it did. So in essence, they had no sovereign rights or protections. Statehood would grant Utah constitutional rights, federal protections, and state sovereignty. They applied for statehood in the 1860s and wanted it badly enough that they were willing to accept almost any conditions to have it. There were three main conditions they had to meet: 1. They had to forever revoke polygamy; 2. They were required to provide a public school system free from sectarian (church) control; and 3. The Mormon Church had to give up political power in the state by disbanding its political arm, the People’s Party, and ensure that a fair and republican form of government was established. It took some doing, but roughly 20 years after petitioning the government for statehood the conditions were met and Utah was accepted into the Union with the passing of the Enabling Act in 1896 (1).
Brigham Young, photo courtesy of Wikipedia
Part of the reason it took so long for Utah to gain statehood is because the minority, non-Mormons in Utah vehemently opposed it on grounds that the state would be governed like a theocracy, where the non-Mormon minority would have no voice or rights. Therefore, statehood was largely an issue of equality and of the separation of church and state, not over ownership of lands (See H.R. REP. NO. 50-4156, at 13 (1889) minority report opposing proposal for statehood for Utah stating that Congress should not admit the state until it is “satisfied that within said Territory there is no union of church and State”) (1).
Utah acquiesced to all the demands and did become a state. As for the federal government’s obligation under the Enabling Act, that obligation was constitutional. The obligation of the U.S. government is covered under the Guarantee Clause in the Constitution: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion and domestic violence. There is nothing suggesting a “promise” to transfer land to the states or that the states had any sovereign rights or powers over federal lands.
There is, however, great power given to the U.S. over federally owned lands under the Property Clause of the constitution which states: 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. Ken Ivory states that under the equal footing doctrine, the states should have been given all public lands at entry into the Union, but the courts have not seen it that way. They have made the distinction, not by a definition of a compact, but by constitutional powers.
When it comes to questions of state sovereignty verses federal sovereignty, the court has relied on lines that delineate certain areas as “truly national” and certain areas as “truly local (1).” There have been cases where enabling act conditions were overturned because the court saw the conditions as Congress overstepping their bounds. However, “the court has been careful to emphasize that federal powers in regard to federal land came from the constitution, not from the admission compacts or conditions. Even if unequal distribution of federal lands within the states meant that newer states would face an increased burden from the same federal land conditions compared to other states that had little or no federal land, there was no infringement of state equality, even if new states had agreed to substantially different conditions related to those lands (1).”
As a result, conditions related to federal and Indian lands and the grants of lands by the federal government to the new states have been uniformly upheld by the courts as within Congress’s power. In Nevada v. United States, where Nevada, much like Utah, passed legislation demanding public land and sued over it, the court found that, “federal regulation which is otherwise valid is not a violation of the ‘equal footing’ doctrine merely because its impact may differ between various states because of geographic or economic reasons and therefore the large amount of federal land in Nevada can be placed under stringent management restrictions without violating the equal footing doctrine (1).”
Photo courtesy of the Western Nevada Historic Photo Collection
While Nevada did not sue under a duty to dispose, they did argue under their enabling act which is virtually the same as Utah’s in regard to public land. But all that aside, the federal government has disposed of lands quite extensively and has been since this country was founded. Nearly 816 million acres of the public domain lands were transferred to private ownership between 1781 and 2006. Furthermore, at least one section (1/36th) of every 6-mile square township was given to the states for the maintenance of public schools within the said township (State Trust Land). In total, the federal government has disposed of 1.275 billion acres of the 1.841 billion acres it acquired from state cessions, foreign treaties, and land purchases (3).
In Utah, many of those lands were transferred into private hands, such as the railroad, and through state trust lands, and the federal government is still transferring land, as was seen a week or so ago when an agreement was reached between the state and the BLM (Land Exchange). Funny enough, however, in the past the states were so reckless and unethical with the lands granted to them, the federal government had to come down even harder on them in the form of tougher restrictions and regulations (1), which begs the question: would the states really make better land managers than the federal government?
I would argue that the states would not make better managers of the land. Furthermore, I would suggest that the federal government is under no duty to dispose of public lands, even though they have done so; but rather that it is their prerogative. The truth is, the government has, with respect to its own lands, the rights of an ordinary proprietor or private individual and may sell or withhold from sale, as was found in Canfield v. United States (2).
Parashant National Monument
The bottom line is Ken Ivory and his ilk want the land so they can sell it to industry and extract all the wealth from it. How they will afford to pay for wildland firefighters, environmental degradation and contamination, loss of wildlife and subsequent hunting and angling dollars, or afford to lose any of the $6 billion in recreation and tourism dollars is beyond me. And this says nothing of the inherent danger in privatizing public lands.
While they state they would keep parks and wilderness areas under federal control, how many other pristine and little known spots will suddenly be off limits? And how long before those federally protected places are encroached upon or ruined by private interests? Even though I don’t think Utah will win this fight, all outdoorsmen and women should be alarmed at the thought of a state takeover of public lands. Those lands are our lands and were given to us in trust; ensuring this land ethic and heritage was one of the best and most visionary decisions ever made by our government. What will happen to the great outdoors if new managers take over? I seriously doubt the states will manage better, be as equitable, or continue to promote the priceless values found in those lands. Anything worth having is worth fighting for. We cannot afford to let the states dominate this conversation and bamboozle us into thinking it is good for us.
“Of all the questions which can come before this nation, short of the actual preservation of its existence in a great war, there is none which compares in importance with the great central task of leaving this land even a better land for our descendants than it is for us, and training them into a better race to inhabit the land and pass it on. Conservation is a great moral issue, for it involves the patriotic duty of insuring the safety and continuance of the nation.” ~Teddy Roosevelt
Citations:
(1) The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union by Eric Biber, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2031&context=facpubs
(2) A Legal Overview of Utah’s H.B. 148 — The Transfer of Public Lands Act by Donald J. Kochan, http://americanlandscouncil.org/myportfolio/a-legal-overview-of-utahs-hb-148-transfer-of-public-lands-act/
(3) CRS Report for Congress, Federal Land Ownership: Constitutional Authority and the History of Acquisition, Disposal, and Retention by Krisina Alexander, http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL34267_12032007.pdf
(4) The New American: Western states want Feds to surrender federal land by Alex Newman, http://www.thenewamerican.com/usnews/constitution/item/18104-western-states-want-feds-to-surrender-federal-land
***Ken Ivory, in arguing for federal transfer of public lands, points to Illinois and Florida as examples of states winning public lands from the federal government, but that is like comparing apples and oranges. Both Illinois and Florida were admitted into the Union before the Civil War which was a game changer for admittance into the Union, drastically changing how Congress admitted new states. Furthermore, neither states’ enabling acts had language like that found in Utah’s and other western states’ enabling acts. Florida, admitted in 1845, was required to “never interfere with the primary disposal of the public lands lying within [its borders], nor levy any tax on the same whilst remaining the property of the United States. Illinois, admitted in 1818, was required to be consistent with the Northwest Ordinance, and Illinois was required to not tax lands sold by the United States for five years, and to not tax non-resident property owners at a higher rate than resident property owners (1).***
***The American Lands Council is a non-profit organization started by Ken Ivory to take back public lands. Both he and his wife collect paychecks from it while lobbying western lawmakers to support H.B. 148, Transfer Public Lands Act, which Ivory sponsored. Conflict of interest? Unethical? http://www.sltrib.com/sltrib/politics/57952776-90/ivory-lands-utah-state.html.csp***
Shovels, Sagebrush, and Cattle: Nevada’s Rural Violence Problem
“Knowledge is a weapon Jon. Arm yourself well before you ride into battle.”
~ George R.R. Martin, A Feast for Crows
If the Cliven Bundy standoff has show us anything, it is that a strain of fringe, anti-federalists not only exist in the county, but are willing to act at the least provocation. The resort to violence by rural people in Nevada is not an anomaly and is not an isolated incident. The unrest, angst, and itch for violence against federal agents and employees is always there under the surface. This county has a long and inglorious history of such factions and groups, and though not limited to the West, they seem to be unduly present not only in rural communities but by leaders and politicians hankering to wrest control of public lands from the Federal Government. There were outcries over the BLM’s show of force in April toward the ranchers and militias, of their preparation for violence, but it will be shown that the BLM had good reason to come prepared. Their good faith effort in 2012 to round up Bundy’s cattle without weapons was called off due to violent threats, which as will be shown, have been real and acted upon in the past.
Anti-federalism groups, or Constitutional vigilantes, have a long and colorful history, beginning with the most notorious faction, the KKK followed up by the Posse Comitatus who put the hit out on the Federal Government (6). These organizations go beyond the mainstream into a fanatical fringe that all have a few things in common. First, they do not have a just or moral cause (though they think they do). Their defiance and acts of violence largely stem from disagreement with the mainstream on specific laws, such as gun restrictions, income taxes, the Federal Reserve, the 14th Amendment, and public lands regulation. Second, they believe that the federal government acts in opposition to the Constitution and believe that they not only are protecting and upholding the values set forth in the Constitution, but that they are the ones who truly understand it. Third, they have a very narrow view of which parts of the Constitution they deem worthy of protection and interpretation, and they largely ignore all case law and precedent set between the time of the writing of the Constitution and the present day. And Forth, they act outside of the law.
It is a dangerous mixture of narcissism, hatred, and ignorance. The most alarming aspect is that while they cloak themselves in the flag and Constitution, they shred the very principles behind them at the same time. We could rightfully dismiss Cliven Bundy as an ego-maniac with a hero complex, but the problem goes further than his cause célèbre when he takes on followers willing to do his bidding through acts and threats of violence. While it is true that the government can act outside of Constitutional principles or can be corrupt, the mainstream fights it within the confines of the law. Sometimes they win and sometimes they lose, but while they are fighting bad law, the way they go about it shows respect for the rule of law in the process. It is the right and patriotic way to keep out-of-control government in check. There is much to complain about in regard to the legal system and how it works, but allowing radical militias, who interpret the Constitution through an arbitrary and selfish lens, is worse.
Photo courtesy of http://www.socialstudiesforkids.com
The first such case of a militia taking up arms against the United States Government was a group of whiskey distillers in Pennsylvania in 1791 in response to a tax on whiskey. Treasury Secretary Hamilton needed to find a steady source of revenue for the fledgling government and so he proposed an excise tax on whiskey produced in the United States. Congress instituted the levy in 1791 (1). The whiskey distillers, like modern day Cliven Bundy and his supporters, didn’t like the tax. In response, the hostile farmers “attacked and destroyed the home of a tax inspector (1).” The hostility grew and threatened to spread to other states. At the time, the government was weak and could not withstand this kind of insubordination if it was to succeed. George Washington was President at the time and Hamilton advised him to send in the military. George Washington did not take his advice and first sent in negotiators, but they failed to resolve the issue with the farmers. When diplomacy failed, President Washington sent in a force of 13,000 militia troops, led by Hamilton and Virginia governor Henry Lee, to put the rebellion down in western Pennsylvania. According to Richard H. Kohn, in his article The Washington Administration’s Decision to Crush the Whiskey Rebellion,
“One of the fundamental questions raised in the debates over the Constitution in 1787 and 1788 was on what foundation the ultimate authority of government rested. When they discussed the problem men who differed over the Constitution as much as James Madison and Richard Henry Lee agreed that government was based either on law or on force and that law was the only firm basis on which to build a healthy republican society. And they also agreed that once the law failed, either through individual disobedience or riot and rebellion, force would be necessary to restore order and compel citizens to fulfill their social obligations (2).”
While the U.S. government is no longer a fledgling one, the similarities between the whiskey farmers in the 1790s and modern day Cliven Bundy and his supporters are striking. The only real difference is the amount of force used by the government to quell the Bunkerville insurrection. But the question about the breakdown of law and the use of force is still relevant. The prospect of force being the final arbiter of justice is truly frightening because it indicates that the rule of law has been breached. This breach of law is the chipping away at the foundation on which this country rests; contrary to the popular and romantic view that it is based on peoples’ willingness to rise up against the government. Furthermore, it puts everyone at risk, including the rebels themselves. The very laws that they are undermining are also protecting them against a real Wild West showdown, not just between them and the government, but by other citizens willing to play by their rules. What is truly shocking, however, is how prevalent this rural defiance is and how it has been allowed, some might even say encouraged, to go unchallenged for so long in the state of Nevada.
There is a certain romanticism attached to the West, and it holds throughout the country, not just in the West. There is some reason for it. When the West was being settled, it really was wild. Justice was largely held in the streets and tough, hardscrabble people had to find a way to survive in what was an unruly part of the country lacking law and order. Against all the odds, tenacious individuals managed to tame the land, endure the lack of law and order, and settle here. Those who came here had to rely on themselves in part because the government was not established enough to do it. But with that self-reliance and individualism came an almost inherited attitude of entitlement to be free from all restraints, regulations, or rules, including from the government. Of course when the government did grow in strength and capability, the rough and tumble settlers of the West viewed it as the new and ever encroaching monster they must now face, and it fit well in their Wild West worldview. In fact, when the Bundy showdown began, the phrase, “It’s about to get western down there,” was touted repeatedly by Bundy supporters. It appeared that these people were excited at the prospect of going toe-to-toe with the government and felt they were following in a glorious tradition started by none other than, the Founding Fathers.
On Independence Day in 2000 a group of roughly 300 people in the small town of Jarbridge Nevada took up shovels and headed to a narrow road on federal land that had been closed by the Forest Service in 1995 after a flood had washed it out. The Forest Service determined that the construction to repair the road would cause more harm than good by endangering the river’s dwindling population of bull trout via erosion. “Long angered by federal restrictions on everything from water access to grazing rights, county officials and anti-federalists across the West seized upon the obscure road as a symbol of their discontent. “We will rebuild the road, come hell or high water,” declared Tony Lesperance, an Elko County commissioner. The demonstrators, met by dozens of law enforcement officers and media cameras, paraded down Main Street, brandishing their shovels and singing The Star Spangled Banner (3).” Due to the media being there, and people excitedly giving interviews, it got a lot of coverage.
“It was a classic fin-de-siècle American protest: a staged telegenic moment steeped in Western symbolism,” according to Mother Jones reporter Florence Williams.
But that’s not the worst of it. According to Williams, Elko County Nevada has earned the reputation as the most lawless county in the West. “In 1995, on the same day a bomb exploded in a Forest Service building across the state in Carson City, a detonated pipe bomb was discovered in an outhouse at a campground near Elko, the county seat (3).” On August 5, 1995 according to the AP, “A bomb exploded under a van at the home of a U.S. Forest Service ranger whose office was shattered by a pipe bomb four months earlier. The bomb was either thrown or placed underneath the van of District Ranger Guy Pence, parked in the driveway of his house. The explosion destroyed the van and broke a few windows in Pence’s home. Pence was on a horseback trip in central Nevada but his wife and three children were in the house in a quiet residential neighborhood on the south side of Nevada’s capital city.”
Photo courtesy http://www.blm.gov
Luckily, none of them were hurt. This happened around the time that the Unabomber killed the head of the California Forestry Association and the Oklahoma City bombings occurred (Timothy McVeigh was associated with the Sovereign Citizen Movement, an anti-federal movement, that showed up to support Cliven Bundy, among others). The bombing at Pence’s office and home were the first on a federal facility or employee in Nevada since Halloween 1993, when a bomb was tossed onto the roof of the federal Bureau of Land Management’s state headquarters in Reno. It is shocking to consider that rural ranchers were so upset over land issues that they would risk killing innocent federal employees trying to do their jobs.
“Federal employees and their families have been harassed and threatened by local residents, prompting some to resign. Snowmobilers venture into protected habitats, ranchers ‘trespass’ their cows on pastures set aside as off-limits, and residents take firewood from federal lands and forests without permits. In Jarbidge, even local politicians have abandoned civility and due process. Two county commissioners feuding over floor time at a public meeting had to be physically separated by the sheriff, and the former publisher of the local paper expressed his civic spirit by shooting an officer’s dog in the middle of town (3).” I recently spoke with a former Forest Service employee who worked in Nevada who said,
“It was very isolated and we were warned from the beginning that most of the people in town were not fond of the Forest Service or BLM. We were the “outsiders”. We were advised to live in the “compound” (government housing). We didn’t eat at the local café because we were told that they would mess with our food. Some people were nice to us but not many. So, we USFS employees just stuck to ourselves mostly. The residents had more disdain for federal law enforcement officers, though. And, there were certain families or individuals that were more notorious about it than others. I would say that most people were just indifferent to us, though. In fact, we never locked our front door. It was a very odd situation. On the one hand, we knew the political history of the area and who the more vocal main players were. We were always careful and safe, but I never felt like I was in any real danger while we lived there. It was just understood that certain residents got away with certain things because they knew that there was little that we could do about it. We were just too short staffed and had too large of an area to cover. It was more an atmosphere of veiled threats and intimidation.
That being said, there were certain people who stirred the pot quite a bit. Wayne Hage and his wife, former US Congresswoman Helen Chenoweth, were the ones who informed my husband of his illegitimacy as an armed federal law enforcement officer and that he was a trespasser. I remember sitting in their beautiful ranch home and listening to them smugly recite their ideology and attempt to justify it by quoting parts of the US Constitution.
Another infamous character was Dick Carver of Nye County. He was a former county commissioner and Sagebrush rebel who was known to carry a copy of the US Constitution in his shirt pocket. He took it upon himself to use his bulldozer to open up a closed FS road. Also, the Nye county sheriff’s office was well known to support Carver and his ideology. They were openly uncooperative with any federal law enforcement efforts.”
But worse than that, they were and are undermining their very own State Constitution. Their paradoxical and contradictory stance is astounding to the reasonable mind, especially when assertions of illegal federal law enforcement within the state is brought up. Article 1, Section 2 of the Nevada Constitution:
All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existence, and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority (7).
Why is this happening? Furthermore, why are politicians promoting this type of behavior instead up upholding the laws of the land and the state? Part of the answer is that there is an ideological shift taking place in the West, at a national level, from the extractive industries to an increased emphasis on protecting the environment. As these national priorities have shifted, the rural way of life has slowly declined and has left many feeling insignificant and neglected. Because most of the growth in Nevada has happened in Las Vegas and Reno, many rural people feel left out of the loop. Perhaps they feel that violence and rebellion is their only option to get heard, but in the continued conflict over how to deal with the change and growing divide over land use, violence and outright defiance to the law is doing more to hurt their cause – even if they have a worthy one. Furthermore, any reasonable person with a sympathetic or willing ear will disappear when this road is taken.
“In Nevada, resentment over the land dates back to the state’s founding. Settlers had expected to take possession of much of the land after the territory was admitted to the Union in 1864. But to the dismay of miners, ranchers, and loggers, most of the state remained in the public domain, and millions of acres were eventually preserved as national forests or placed under the direction of the federal Bureau of Land Management. The deep-seated seething came to a head in 1977. Angered by federal moves to increase fees for ranchers who grazed livestock on public lands and to set aside millions of acres as wilderness areas, the Nevada legislature backed a legal challenge to claim most of the federal land. Other Western states quickly followed suit, launching a regional movement that became known as the Sagebrush Rebellion (3).”
Photo courtesy of http://www.quickmoneyanswers.com
The Sagebrush Rebellion did have rural support and was fought by politicians, but ultimately a federal judge ruled against them. Much of the bravado and angst is egged on by politicians who may gain political capital, but who do not feel the national pinch that comes in response to such rebellions. “Federal ownership of western lands powerfully shapes the regional economy and society. Along with aridity, it is perhaps the defining characteristic of the West. Though a national park can be a source of pride; most federal land ownership (especially BLM jurisdiction) has always been a politically attractive whipping boy for western politicians (5).”
One such politician was Richard H. Bryan, who used the cause as a stepping stone to higher office. He argued before the court that Nevada, along with other states, had an expectancy upon admission into the Union that the unappropriated, unreserved and vacant lands within their borders would be disposed of by patents to private individuals or by grants to the States and that federal control of lands within western states’ borders prevented those states from standing on an equal footing with other states, as required by the Constitution. U.S. District Court Judge Reed cited the Property Clause within the Constitution and ruled against him. But like Nevada before, states such as Utah and Montana are still willing to gamble with the opportunity to successfully fail and further chip away at the harmony that law and knowledge of the law provide (5).
In the battle in Jarbridge over the Forest Service road, Republican state assemblyman John Carpenter and other elected officials were leading the charge (among many before it). Elko County claimed that it, not the federal government, owned South Canyon Road under an obscure federal statute dating from 1866, known as R.S. 2477. The statute essentially guaranteed settlers rights-of-way across federal land. When the Forest Service failed to repair the road after the flood, the County Commission decided to do it on its own, without bothering to obtain the appropriate permits. After the county had already filled in 900 feet of wetlands and changed the course of the Jarbidge River, the U.S. Army Corps of Engineers and the Nevada Department of Environmental Protection got an injunction against the county for violating the Clean Water Act. In 1999, Carpenter and two of his allies — attorney Grant Gerber and county GOP chairman O.Q. Chris Johnson — organized a group to reopen the road. Threatened with a federal restraining order, the men turned back, but they continued to spur on the Shovel Brigade (3).
Photo courtesy of news.blogs.cnn.com
A federal district judge ordered Elko County and the Forest Service into mediation to resolve their dispute over the road. After 100 days, the two sides reached a proposed settlement that gave the county essentially everything it wanted: a nice new road farther away from the fish, paid for by the feds. The agency even agreed to give the county the authority to maintain the road in the future. But the agreement stopped short of explicitly stating that the county “owned” the road. That wasn’t enough to satisfy Carpenter and many county officials, even though the county’s own negotiators had hammered out the terms. The County Commission refused to sign the settlement (3). This refusal to compromise is a consistent trend amongst such radicals, as we saw when Cliven Bundy refused to cooperate and demanded all law enforcement officers hand over the guns, the government disband the BLM and NPS, and that gates be torn down at National Parks.
Such actions and bravado are exasperating to citizens and county officials who are fed up with the anti-federalists. According to Williams, Karen Dredge, who retired after 17 years as Elko County clerk, pointed out how nobody stepped forward to help underwrite the county’s failed lawsuit over rancher Don Duval’s water rights. “The county is broke,” says Dredge. “We were told to cut all our departments’ budgets, and they want to fight a cause that really strays from county business. Some of our commissioners are activists, not leaders. It’s a room full of the same radical people with the same radical words, and they want us to foot the bill.” In Elko County, the anti-federal attitude comes from the top. In the late 1990s the district attorney drafted a public service announcement advocating discrimination against Forest Service employees. “This message is brought to you by the Elko County Commission, who encourages you to let the Forest Service know what you think about this by not cooperating with them,” the draft read. “Don’t sell goods or services to them until they come to their senses.” The commission did not act on the district attorney’s advice, but hostilities became so great that Gloria Flora, supervisor of the Humboldt-Toiyabe, resigned from her job in 1999, saying she feared for the safety of her employees (4).
This sort of rhetoric can be heard around St. George and on the Stand with the Bundy’s Facebook page encouraging people to refuse service to federal employees. Several federal employees at the St. George Field Office, who had nothing to do with Bundy’s roundup, got enough threats that they were sent home. It is people in positions of authority, whether they are church leaders, media types, or politicians, who are culpable if not flat out guilty, in promoting this destructive attitude and lawlessness. But they are not the ones who will pay. They may get a pat on the back from their fellow church goers, or their buddies, or gain some political clout, but once it’s over, they will go back to their regular jobs, homes, and life while the rural community suffers the backlash. Some of those local politicians include Utah Senator Mike Lee (who ran against Senator Bennett on none other than the issue of public lands) and Governor Herbert (suing the Federal Government for public lands and access roads), the Texas Attorney General Greg Abbott, and Governor Sandoval in Nevada.
But political maneuvering aside, this really hurts rural communities and people. The trend across the West is changing, whether people like it or not. It is going to take smart people to find fair and equitable solutions, not ignorant people bent on working out their differences through violence. People in rural communities need to be included in the march of progress and helped economically rather than left behind once they have helped greedy politicians move up the political ladder. According to Williams, “Many residents fear that the alpha-male approach to conflict resolution prevents the local economy from diversifying beyond casinos and gold mining. This is certainly not good for economic development, worries Glen Guttry, an Elko city councilman. Some people are afraid to move in because of all the controversy (3).”
Seething anger, conflict, and a stubborn hold on the past will kill any attempt at a flourishing economy for rural communities by scaring away investors, businesses, and people who might otherwise be interested. I once spoke with a rancher who was bemoaning snotty east coast college graduates that come out to the West and tell him how the range works. I suggested that he offer internships so that they could learn what he was talking about. He mused on that. I would posit that rural people need to take time off to get degrees in biology, geology, law enforcement, environmental science, and law, etc., and then go back to their communities better equipped to help them. Perhaps even get jobs within land management agencies where their unique perspective can shed light on situations that would otherwise not get it.
As old Marshal Cogburn said in True Grit, “If you don’t have no schooling you are up against it in this country, sis. That is the way of it. No sir, that man has no chance any more. No matter if he has got sand in his craw, others will push him aside, little thin fellows that have won spelling bees back home.” Might and grit will only get you so far, and will do more for opportunistic politicians than the regular citizen. It appears that Nevada is as lawless as ever. It is time for those with sway and power to be the voice of reason and help the people of rural Nevada transition to the New West with respect and dignity and encourage rural Nevadans to give dignity, respect, and fair treatment to the federal employees caught in the middle. Smarter not harder comes to mind. Cliven Bundy is in the limelight right now, but it won’t last, and the consequences of his actions may turn out to be more toxic to the rural individual than the Federal Government ever could be.
For more history on the Posse Comitatus that started during the reconstruction of the South, the Sovereigns Movement, and Cliven Bundy’s link to them and his stance on sheriffs being the final authority, etc.
Sources:
(1) PBS Whiskey Rebellion: http://www.pbs.org/wgbh/amex/duel/peopleevents/pande22.html
(2) Richard H. Kohn, The Washington Administration’s Decision to Crush the Whiskey Rebellion: http://arch.neicon.ru/xmlui/bitstream/handle/123456789/4145794/JournalofAmericanHistoryjah_59_3_59-3-567.pdf?sequence=1
(3) Mother Jones, The Shovel Rebellion: http://www.motherjones.com/politics/2001/01/shovel-rebellion
(5) Story of Kleppe v. New Mexico: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1454&context=facpub
(6) A long history of armed Constitutional vigilantism predates Bundy Ranch: http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/bundy_ranch_vigilantism_going_mainstream_the_idea_that_the_constitution.2.html
(7) The Irony of Cliven Bundy’s Unconstitutional Stand, by Matt Ford: http://www.theatlantic.com/politics/archive/2014/04/the-irony-of-cliven-bundys-unconstitutional-stand/360587/
The Southwest Journal 