Beyond the Southeast

Cliven Bundy and Radical Militias Threaten Violent Resistance Against the Government All While Undermining Their Cause of Private Property Rights

Gold Butte, Nevada

Gold Butte, Nevada

Warning: This article will discuss the actual legal issues involved in the matter.

The hills are alive with the sound of gunfire! It hasn’t quite reached that point yet, but the standoff between Rancher Cliven Bundy and the US Bureau of Land Management (BLM) over cattle grazing in the Gold Butte area of southeastern Nevada has escalated quickly. Last week the BLM ended a court-ordered roundup of nearly 1,000 cattle due to concerns over the safety of government officials. Bundy was ordered to remove his cattle from public land way back in 1998, but last year the government sought and received a court order allowing them to forceably remove the cattle from the public land since Bundy had failed to abide by the 1998 order. This has drawn outrage among pro-gun and militia groups.  Many such groups have migrated to southeastern Nevada stating their intent to violently resist the government’s enforcement of the court order.

Many people are probably scratching their heads as to why militia groups have chosen this case to rally around property rights and freedom. The facts are squarely against Bundy in both legal, Constitutional, and common sense. While it is certainly commendable and often times desirable for groups to defend against oppressive government tactics, this type of action should be reserved for situations that actually merit such a response. The federal government owns massive amounts of land in the west and we should certainly debate the social or economic good of such ownership, but the Constitution shouldn’t be thrown under the bus by men with guns.

Bundy claims that he either has some right to be on the public lands or that he actually owns the lands and they aren’t public at all. However ideological his fight may be, the courts had little trouble extinguishing all of his arguments.  Bundy actually argued the case without the use of an attorney; I don’t know if this is just in-line with his libertarian thought process or if he couldn’t find an attorney that was willing to risk being sanctioned for trying to argue the case. Following the Nevada District Court’s 1998 opinion that issued the original injunction and granted damages, the 9th Circuit affirmed without so much as an explanation. No objection was taken to any issue in the case, so the 9th Circuit simply affirmed the ruling of the Nevada District Court.

Land Acquired in Treaty of Guadalupe Hidalgo

Land Acquired in Treaty of Guadalupe Hidalgo

This is a simple trespass claim by a property owner. The United States government acquired the property at issue from Mexico back in 1848 as part of the Treaty of Guadalupe Hidalgo. Bundy allowed his cattle to graze on the land without paying for a permit, which means he was on the land without the permission of the property owner. Every step taken by the cattle damages the land to some extent so the government had little trouble proving that the trespass actually caused damages. Further evidence showed that damage could result to some endangered and threatened species. Accordingly, the Nevada District Court issued an injunction in 1998 to stop cattle from being placed on the land.

It’s important to note that, as a general rule, an individual cannot adversely possess land owned by the government. Adverse possession works by allowing a party to gain title to a property by outwardly claiming ownership to that property for a span of time without the true owner either restricting or negating such claim during that span of time.

So realistically this works by party X building a shelter on property Y or simply maintaining property Y.  Z, the true owner (the one with title) of property Y, fails to either ask X to leave property Y or to restrict X from accessing property Y. Each state sets the amount of time that must pass between party X  outwardly claiming ownership and party Z restricting his use.  Once the time has passed, X gains title to the property.

While one can adversely possess land from another individual or entity, the process doesn’t work against the government.  There are several policy reasons behind this, one being that the government owns so much land, either because it bought it/took it or the land defaulted to it, that it would be economically and practically unfeasible for the government to monitor the property at all times. Meaning it’s not reasonable for the federal government to put up fences and cameras to monitor all the property it owns.  This would ruin the point of the government maintaining natural habitats and place a heavy economical and physical burden.

The BLM Administers About 18,000 Grazing Permits

The BLM Administers About 18,000 Grazing Permits

So just because Bundy’s family had been grazing on the land for the past 100 years doesn’t give him any rights to the property. His grazing on the land was always at the discretion of the government. In fact the government was open to him continuing to graze on parts of the land if he would just pay his permit fee like every other rancher that uses the land. While others are paying the fees that are theoretically being used to maintain that property and others, Bundy has used the land without paying around $1 million in fees since the commencement of the entire ordeal.

In claiming a right to graze without the need for a federal permit, Bundy attempted to invoke a Nevada open-range statute that allows cattle to graze on public lands in the state. While it may allow him to graze on state public land, the Supremacy Clause of the US Constitution mandates that federal law always supersedes state law when the two are in direct conflict. In this case, Congress decided a permit was necessary to graze on federally-owned public land.

Land Area Held by Federal Government, 1997

Land Area Held by Federal Government, 1997

Bundy also claimed that he, or rather the State, actually owns the property under something called the Equal Footing Doctrine.  This doctrine generally says that all newly admitted states are on equal footing with the original 13 states. The courts have primarily interpreted this to mean on equal political footing and not to mean that each state gets roughly the same amount of land to control. However, the Doctrine does give states the right to all soil under navigable rivers. A huge caveat exists: a state only gets the rights to such soil if the US has not already claimed it. So the Doctrine is triggered at the moment the state was originally admitted to the Union, it only applies to soil under navigable rivers, and it doesn’t apply if the federal government already claimed that land. Again, the US has explicitly held the rights to the lands at issue since 1848.

Interestingly a clause in the Nevada Constitution specifically dismisses any claim the State may have to land already owned by the federal government at the time Nevada was admitted as a state.  Naturally, Bundy attempted to use this to his advantage by saying it did not grant the federal government any right to the property.  The court basically agreed with him, however the argument was pointless. The Clause merely states a preexisting right of the federal government, so even if the Clause didn’t exist, the federal government would still own the land.

Property rights are perhaps one of the most important features of a functioning democracy. Rallying around those who are being unlawfully or unfairly deprived of such rights should be a staple of society. This, however is not an appropriate case for a rally. In realty, Bundy is the one undermining private property law and justice. It may be easier to cast a villainous shadow over the property owner in this case since  the federal government has a long history of unjustly depriving individuals or private property rights, but sides should be taken on a case-by-case basis.

King Range National Conservation Area Held by BLM

King Range National Conservation Area Held by BLM

The law is squarely on the side of the federal government and the government’s ownership of this particular piece of property is probably not all that controversial.  A 2012 poll showed that 95% of voters want to the federal government to protect and preserve national parks. Granted that was poll conducted by the National Parks Conservation Association and the land in question isn’t a national park, but a general inference can be made that Americans support the preservation of land for the benefit of the environment. It’s not as if the land in this case is being used for weapons testing or some other controversial issue where we may generally agree that cattle grazing would be a better use.

Beyond the fact that the law is on the side of the government and the likelihood that the popularity of the use of land at issue is on the side of the government, good-faith is also on the side of the government.  The original injunction against Bundy was issued in 1998.  The most recent order allowing the government to remove the cattle was issued in 2013.  That means for the past 15 years the government has attempted to negotiate with Bundy to peacefully settle.

Bundy and pro-gun militias are making fools of themselves and hurting the cause of private property rights. They are showing a clear ignorance of the law, a lack of common sense, and, based on the facts, are likely opposing what most Americans would support.

Disclaimer: The information contained in (hereinafter “this site”) should not be construed, or relied upon, as legal advice. By accessing this site it is understood that no attorney-client privilege has been formed between you and the publisher. This site is neither an advertisement for legal services nor an invitation to form an attorney-client relationship. This site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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