Trouble on the Range

Vast new regulations on the 87% of Nevada owned by the federal government have the citizens fighting mad. And now the feds are packing guns…

A modern-day range war is brewing behind Nevada's bright lights and busy gaming tables: 87 percent of Nevada, the nation's seventh largest state, is owned and controlled by the federal government, and the 13 percenters have had enough.

As long as population was sparse and isolated, as long as government restrictions were few, peace generally prevailed. But people are flocking into Nevada to take advantage of its favorable tax structure and personal freedoms. Now, ranchers and miners, the interest groups who settled the state, privileged in the past to use Nevada's federal land cheaply, are threatened economically with extinction due to proposed regulations. Recreationalists with off-road vehicles face possible bans on their use of the public domain. Private utility companies encounter 18- to 20-month delays in gaining rights-of-way across federal land. Housing, schooling, and serving the burgeoning federal bureaucracy and their families create increasing taxpayer burdens. Federal land officials now carry arms thanks to the 1976 federal Organic Act; a few fringe groups are discussing "civil disobedience," and some federal officcials have requested job transfers to less emotionally aroused areas.

The battle concerns 60.6 million of Nevada's total of 70.7 million acres. Control rests primarily with the U.S. Interior, Agriculture, and Defense departments. Since 1934, Interior has had the lion's share: 52 million acres, with its Bureau of Land Management (BLM) holding at bay more than 48 million acres. Agriculture's Forest Service governs more than 5 million acres and the Department of Defense over 3 million. But the popular bumper-sticker, "Feel Fenced In? Blame the BLM!" identifies the primary villain of this land battle.

Though small acreages of collective domain exist in the Midwest and Southwest, the public-land problem concerns chiefly the 11 western states of Alaska, Arizona, California, Colorado, Idaho, Montana, New Mexico, Oregon, Utah, and Wyoming, along with Nevada.

The Nevada battle is the first to surface, with state political action. The prize is state jurisdiction over all land within Nevada's boundaries, with evential private ownership of most of that land. If Nevadan efforts fail—presaging events in the other, now-watchful, public-land states—national and worldwide consumers can prepare themselves for possible shortages and higher prices for American metals, energy, beef (and beef products such as insulin, estrogen, and thyroid), lamb, wool, and a host of other commodities, as well as far higher taxes to subsidize foreign competition and the growing public-land managerial bureaucracy.

FEDERAL LAND

There had been no public domain as such in the original 13 states. The Articles of Confederation in 1781 stated that "no state shall be deprived of territory for the benefit of the United States." Lands would be held "in trust" for the eventual states to be later created. Thereafter, the Ordinance of 1787, regarding the Northwest Territory, stated that such lands would eventually be "on an equal footing with the original states, in all respects whatsoever."

Article 1 of the U.S. Constitution guaranteed to each and every state sovereignty over all matters within its boundaries, except in certain express instances (namely, the District of Columbia and areas to be used for national defense), with land to be acquired by the federal government only with the consent of state legislatures. Thus it was that the majority of federal lands passed into state and thence into private hands.

After the Oregon Purchase of 1846, the federal government retained public lands, ostensibly also "in trust" for the states to be later formed from them. Two years later, public lands were also retained from the Mexican Cession, including land which is now Nevada.

That "Nevada" land was a great basin of over 160 mountain chains, vast range, desert, and interior water drainage: difficult and forbidding country attempted only by the hardy and independent. Piute, Shoshone, and Washoe Indians, erstwhile trappers and trailblazers, and Spanish missionaries were its few people and travelers. Then gold was discovered in California, and between 1849 and 1857 most "visitors" to this western Utah territory were travelers on their way to California or, lucklessly, on their way back East.

Miners had to eat, however, and they liked to eat meat. Before the gold rush, a head of sheep fetched 75 cents on the hoof; at the height of the rush, 25 dollars! Almost as fast as it takes to say his name, men like Kit Carson took financial advantage of the situation, buying cheap in the East and selling dear in the West hundreds of thousands of sheep and cattle. Thus Nevada's vast ranges and mountain meadows and streams came to be discovered and prized by the drovers: no fences barred their access and passage. The valleys and flats were natural winter range, snow providing ample water for livestock; the lofty mountain benches were summer range, crisscrossed by crystal streams and pastured by native grasses. Later ranchers would appreciate the same land for much the same reasons, and today ranching is a billion-dollar industry, dependent on range usage.

As a group, the Mormons did as much to settle the land as the miners caused travel over it. (13 percenters only wish they had settled more of it!) Utah was geographically near, and their religion encouraged them to settle and cultivate the land. The Mormons were also traders: the transient miners' wornout horses and oxen could be traded for food, supplies, and fresh animals; after refattening in Mormon fields and nearby ranges, they could be traded again.

In 1859, in an area of major agricultural cultivation, Patrick McLaughlin and Peter O'Riley discovered a rich ledge of ore, thought to be gold. Crafty, but lazy, Henry Paige Comstock convinced them that the nearby spring of water necessary to its mining belonged to him and thus saw his name grace the lode. It mattered little that the blue ore later proved to be almost pure silver: the rush was on!

People who had previously spilled into California now spilled just as rapidly back into "Nevada." Thousands of foreign born also came seeking freedom and economic independence. (Until 1930, almost half of Nevada's population was foreign born.)

While neither national nor Utah territorial laws described or protected mineral claims, former California gold-rush miners brought with them a practical legal structure—the "mining district," based on purely economic private enterprise. As a means to protect mineral rights, it was well established in California courts by this time.

Economically, the area mushroomed from the dark depths of the earth, literally fed by the sheep and cattle that traversed the vast browse-filled open range. Private stage, freighting, and railroad companies and the Pony Express gained incentives to speed people, goods, and information across the continent.

Politically, outside the mining-district structure, the area was in confusion. But, after southern states seceded from the Union and pro-Union mining and railroad interests gave financial assistance, Nevada territorial status finally became an actuality in March 1861. President Lincoln proclaimed a New Yorker, James Nye, the first territorial governor of Nevada.

STATEHOOD FOR A PRICE

The 1862 territorial legislature agreed to "frame a Constitution and State government for the State of Washoe." (The Washoe Indians were the major tribe in the area.) Editors, such as W.J. Forbes of the Humboldt Register spoke out:

"DON'T WANT ANY CONSTITUTION…The Humboldt world is dead-set against engaging to help support any more lunk-heads.…If we have a State Government we'll have more fat-headed officers to support."

While the proposed constitution of 1863 was soundly defeated, Lincoln needed Nevada as a state to help save his own hide: he needed votes to pass the 13th Amendment, and there was a chance that the election of 1864 would be thrown into the House of Representatives.

The silver of the Comstock spoke, and Congress passed the Enabling Act on March 21, 1864. Federal congressional wording provided the name "Nevada," and the entire state constitution was wired to Washington, passing in the nick of time for the presidential election.

The sparsely settled people of territorial Nevada were allowed to achieve statehood in return for their acceptance and compliance with the Enabling Act's provisions. All land not settled or in railroad and future school grants was to be considered "public land." In short, Nevadans traded, for statehood, most of the land within state boundaries and the power to tax that land. Nevada's later inventive laws—legalized gambling and liberal divorce and marriage requirements—to achieve tax revenue would be direct results of the hamstringing Enabling Act and the ensuing Ordinance to which the then-voters of Nevada were compelled to agree.

UNCONSTITUTIONAL

The question of land ownership is at the root of today's battle against the federal government. The political basis for victory rests on the dichotomy between two of the Enabling Act's provisions. The Act particularly stated that Nevada was to "be admitted into the Union upon an equal footing with the original states in all respects whatsoever" but also "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 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."

Nevada's 13 percenters are indebted to former sheep rancher, attorney, judge, and author, Clel Georgetta. Judge Georgetta's Golden Fleece in Nevada (Reno: Venture Publ., 1972) is a superb and careful account of the rape of 87 percent of Nevada's lands (and, tangentially, those of all the public-land states). It has become the BLM-fighters' bible.

Georgetta directs us to an 1845 U.S. Supreme Court decision, Pollard v. Hagen, wherein Enabling Act wording for Alabama admission, almost identical to Nevada's, was declared in violation of the U.S. Constitution and thus void. He points out that: "The United States Supreme Court laid down two different legal propositions:

1. that the land under a navigable river belongs to the State and not the Federal Government—because that was the situation in the thirteen original states and each new state was admitted on an equal footing in all respects.…

2. that the federal government UNDER THE CONSTITUTION cannot own land or exert complete sovereignty over land except the District of Columbia, land needed for governmental purposes purchased in a state with the consent of the legislature, and the land of a territory WHICH IS HELD IN TRUST FOR THE FUTURE STATES."

FEDERALES WELCOMED

Since legislation usually creates the opposite of its intent, laws often wind up being fought by those who wanted them in the first place. So it is in Nevada.

The government land regulation that is the bone of contention today was largely created by the livestock establishment—then colloquially known as the Bull Bloc—in an effort to rid itself of its economic competition, the nomadic drover-entrepreneurs of the time—"tramp sheepmen." Even though the Homestead and Desert Entry acts permitting settlers had the result of fencing out sheepmen from many areas, the nomads still made use of tortuous driving routes, squatting on establishment water and range in the process.

The Bull Bloc called on government to help. And help came, initially in the form of the Creative Act of 1891, empowering the president of the United States to withdraw forest land at will from private ownership. Over 5 million prime Nevada acres were so withdrawn. For swallowing the stick of federal control, the livestock establishment's carrot was the privilege to graze closed lands without interference from tramp sheepmen. Later federal regulations, however, impinged on even the large livestock owners.

In 1934, under the guise of there being great danger of erosion and damage to watersheds due to overgrazing on public lands (the identical words being used today), the triumvirate of Henry Wallace, Harold Ickes, and Franklin D. Roosevelt pushed through the Taylor Grazing Act. In return for acquiescence, sparsely populated western states would obtain road systems federally funded in proportion to the percentage of public domain each contained.

This act enabled the federal bureaucracy to gain complete control of 87 percent of Nevada land. The federal government would have the power to determine who would get permits to graze and drill water wells, when and how those permits could be used, and how much they would cost. Certain provisions to safeguard livestock owners' investment in public lands were included.

A few years down the road, and "ecology" and "multiple use" became household political terms, and privilege for rancher and miner was doomed. The Multiple Use Act of 1964, which many supposed to be a temporary measure, allowed the Secretary of the Interior, at will, to permanently withdraw acreage from and for the public domain for multiple-use purposes. Under this act, Interior may repeal nearly all federal-land laws without any act of Congress. Safety provisions of the Taylor Grazing Act were eliminated.

LOCO PROGRAMS

One of the most publicized and controversial BLM programs as result of this law came in 1971: the Wild and Free-Roaming Horse and Burro Act. This gave the bureau full responsibility not only for habitat but for the animals themselves (ostensibly to keep the animals from becoming dog food).

On the range, wild (unbranded and untamed) horses and burros compete for forage and water with branded horses and agricultural livestock, whose owners must pay for such use. The wild animals also reproduce at rates as high as 25 percent per year, and Nevada rancher range allotments are cut as the wild animal counts increase. BLM officials state that these wild animals definitely contribute to the problems of overgrazing (the ostensible reason for federal control in the first place), but even the BLM is, as yet, no match for "Save the Mustang" crusaders.

During 1975 and 1976, a roundup and foster-home program for some 400 wild horses (out of over 25,000 in Nevada alone) was carried out in one Nevada county. Both programs were disasters in federal fund waste and inefficiency. By a 1959 law, the BLM was prohibited from temporarily fencing off waterholes or using aircraft or motorized roundup vehicles; so collection was difficult and time consuming. Then too, anyone wishing to adopt a horse is refused a choice between one that has eaten loco weed (and is therefore "crazed" and completely unusable) or one that is sound and healthy. Title to the horse (but not its offspring) resides with the government.

By January 1976, Nevada ranchers finally came to regret the "protective legislation" gained by the Bull Bloc in 1891. For those ranchers using government land received a BLM memo stating that, over a period of years, certain directives were to be enacted: closure of the range to all users for a minimum of two months per year (to prevent overgrazing); ear tagging of cattle (to facilitate cattle counts from aircraft!) and those not ear-tagged to be subject to trespass fines; reduction of grazing privileges (to favor multiple-use concepts); and a 51 percent increase in grazing fees.

This memo had the same catalytic effect on Nevada ranchers as the Townshend Acts had on prerevolutionary America. A ranchers' mass meeting in Elko, Nevada, known as the "Tea Party" occurred shortly thereafter.

To Nevada ranchers, closure of the range would mean special costly cattle roundups to prevent even more costly trespass fines and, while livestock was "off the range," either owning enough private, fenced land to support animal feed or renting private pasture perhaps many miles away. Remember, 87 percent of Nevada land is locked out of private ownership. Many Nevada ranches contain only small percentages of private land compared to federally permitted land. Therefore, these rules erode a ranch's very foundation: livestock production and land resale value.

Over the years the public-land problem has been escalated by a communications gap between those who promote, write, and enforce federal regulations and those who must live with such laws. Most regulation instigators have never been to the areas in question and know little or nothing of the problems faced or of economically practical means of operation there. The areas to be regulated are merely places on a map—in fact, one can drive through sections of Nevada U.S. Forest Service land that literally are, and always have been, bare of any trees whatsoever.

What is not realized—or ignored—by promoters and makers of land-use regulation is that anyone who uses land for economic purposes must be an "environmentalist." Caring for the environment is nothing new, especially where productive soils, water, and accessible minerals are at a premium. In the words of one mining 13 percenter: "Whether you use a pick and shovel or a bulldozer, the man who digs any more than necessary won't have to wait for the bureaucrats to shut him down. The economics will do it in short order." The same applies to a rancher, who cannot afford to overgraze the land he uses.

But "environmentalism" is in vogue. A recent example manifests itself in the Natural Resources Defense Council's successful suit against the BLM (NRDC et al. v. Morton), requiring the filing of environmental impact statements (EIS) dealing with livestock grazing in specific areas. By 1984, 212 court-ordered EISs are to be completed, covering the 11 western BLM states.

Nevada ranchers shudder at the first EIS, which was for the Challis, Idaho, area. It weighs in at 5-1/4 pounds, advises strictly limited grazing, and, among other things, proposes to augment the "visual resources" of the public domain: lands should be graded numerically and arranged by color and texture, with fencing appropriately colored not to jar the eye; moving cattle should be prevented from causing dust conditions that would interfere with good "sightseeing experience." And what would we do if dustcloud-raising buffalo, the demise of which is so lamented by environmentalists, still roamed?

The successful NRDC suit, along with continuous Sierra Club pressure, likely helped pass the BLM Organic Act in October 1976. It replaces the Homestead and Desert Land acts with plenary power of the BLM, with public lands to be retained in federal ownership unless disposal serves "the national interest." This act also permits the arming of federal agents who enforce public-land laws. Thus Nevada now has an armed federal police force on 87 percent of its territory. Other proposed enforcement regulations stemming from this act are serving to consolidate opposition from all public-land users in Nevada.

Nevada recreationalists and off-road vehicle users, too, are feeling the spurs of federal control. If proposed regulations go into effect, they will no longer be permitted free use of federal land but will have to apply months in advance for a permit stating where they will go, how many they will be, how long they will stay, and what they will do; and, naturally, they will have to pay for the privilege.

Miners and prospectors, having enjoyed relative freedom under the 1872 mineral location law, are now faced with posting $100,000 bonds before working on public land. Many established mining contractors have already been told by major national insurance companies that such bonds are unobtainable because insurers are unwilling to entertain longterm obligations without cancellation provisions. And this measure spells the extinction of individual miners and prospectors.

Proposed surface-mining regulations require costly mining claim refiling maps and fees and reclamation and revegetation of mine sites. The manager of one gold mine estimates that reclamation costs could run $100 million for 234 acres. The amount of earth needed to fill up already worked mine pits is mind-boggling. Revegetation for areas with less than 10 inches annual rainfall is viewed as absurd. Then too, if mine workings are to be destroyed and covered up, valuable windows for future development will be lost, forcing costly extra geological drilling or further stripping of new areas to regain previously exposed information. Almost everyone sees a continued and increased dependence on foreign mineral imports if the federal government has its way. (In 1976, Nevada mineral output had a value of $211.2 million; in 1975, $258.4 million.) A popular mining-oriented bumpersticker blares, "Let the Ecological Bastards Freeze in the Dark!"

13 PERCENTERS ARISE

Basically, public-land users believe that 100-odd years of privilege have garnered them rights. Their opposition, however, is not confined to the display of bumperstickers.

From time to time, Nevada range users have applied political pressure to create state committees on federal land laws and to request additional land grants. A 1970 state legislative committee requested the federal Public Land Law Review Commission to grant 6 million acres to benefit the common schools, but, with the demise of the commission, the Nevada request was thrown out.

1975 saw, chiefly through the efforts of state Senator Richard Blakemore, a senate concurrent resolution creating a legislative Subcommittee on Means of Deriving Additional State Benefits from Public Lands. The resolution especially suggested applying to Congress for more land and greater state administration of public lands, legal action by the state, "or other measures to be devised."

But it was the BLM memo of January 1976, proposing range closure, increased fees, and costly ear tagging, that produced a tidal wave of antifederal feeling (Nevada miners would not receive a similar directive until late December 1976). Within weeks there was the anti-BLM "Tea Party," and central Nevada ranchers began assembling petition signatures for "the transfer of ownership of public lands from federal government to the states" and expressing moral claims and displeasure over federal management. In mid-March, the president of the Nevada Cattlemen's Association, supported by cattlemen and sheepmen, formed the Nevada Land Action Association.

Wherever BLM-sponsored public hearings were held, hundreds of furious range users packed in. After one stormy session, BLM officials refused to allow anyone other than a BLM official to address the group at large. The huge and widely represented gathering dispersed in rage. Since then, several protesting Nevada ranchers state that they have been fined and retaliated against in a number of ways, not the least of which has been the federal stampeding of cattle by low-flying helicopters (attempting cattle counts) and further waterhole and range restrictions. These are third- or fourth-generation ranchers, and they are not about to give up.

Then the miners got into the act. The Northeastern Nevada Miners and Prospectors Association circulated a referendum petition for a Nevada Public Lands Ownership Act, seeking to amend the state constitution. It declares all federal land in the state to be held illegally and unconstitutionally, with the exception of Indian treaty lands. A land commission would be set up to supervise sale of lands to the highest bidder with five years of beneficial (productive) development perfecting ownership. Once approved by the legislature or statewide ballot, any federal official attempting to exercise jurisdiction over the "public lands of the State of Nevada" would be adjudged to be committing a felony punishable by imprisonment.

At the time, this petition was branded "Bircher" by some. Hadn't Nevada citizens, by allowing the federal government to continue its control, actually legalized it by their submission? "Legislative remedy" based on the "equal footing" doctrine—as in the proposed Nevada Public Lands Ownership Act—said "No": Nevada has always had the constitutional right to assert control over its lands because it was granted statehood on equal footing with the original states.

Then came a number of court cases testing the equal-footing doctrine in Nevada and other western states. On January 12, 1977, the U.S. Supreme Court in effect supported the 1845 Pollard v. Hagen decision and ruled in favor of states' rights. This case, Oregon v. Corvallis Sand and Gravel Company, involved beds of navigable rivers and found that enabling-act wording does not supersede prior states' rights based on the equal-footing doctrine guaranteed under the U.S. Constitution. Nevada served as an amicus curiae in this case.

At approximately the same time, as a direct result of restrictive mining regulations proposed by the Department of the Interior's BLM, a new vocal group backed by mining corporations and consultants came into being: Citizens for Mining. This nonprofit group vows to assist not only mining men but ranchers, recreationalists, and rural communities whose incomes derive heavily from public-land use, primarily by communicating to the media nationwide the problems created by federal control.

And, riding the crest of the growing antifederal wave, Nevada's Senators Blakemore and Glaser (both Democrats) introduced senate bill 398, proposing the formation of a commission to sell, lease, or trade the 60 million federally owned acres within the Nevada border. The fact that this bill was introduced at all shows the surge of 13-percenter sentiment statewide. A public hearing on the bill in Carson City was jammed, and not one voice spoke out in disfavor. Even the editor of Las Vegas's primary newspaper, the Review-Journal, supported SB 398 in print.

WHO WILL WIN?

Although SB 398 died in committee, Senator Blakemore gained passage of a bill—similar to his 1975 effort—that sent a special judicial and legislative committee to plead Nevada's case in Washington, as a "first step in avoiding violent confrontation." Department of Interior officials "pledged cooperation" and listened to suggestions, including fair-market sale of Nevada public lands—to establish a trust fund to buy eastern lands for the federal government!

As a result of Nevadan agitation, reinforced by Blakemore and Nevada U.S. Senators Laxalt and Cannon, draft BLM regulations are pending (with possible 1978 action) to free a token 67,000 acres of Nevada public land for private homestead use, bypassing state collective ownership. This is land that has been "reexamined" and found capable of supporting families of four in approximately 400-acre parcels. Land is proposed to be sold at market value—with lots of red tape attached, naturally. Irrigation systems must be put in over a period of time, and the land will have to be "proved up," much as land "freed" under the Homestead and Desert Land Entry acts (now in moratorium), to show that it is providing family income and "beneficial use."

Attempts to restrict the small miner and prospector by repeal of the 1872 Mining Law have also been thwarted by a grassroots groundswell of opposition, in part Nevadan. Chairman of the House Interior Committee Morris K. Udall, who desired a new law permitting miners only to lease minerals rather than own them, has stated that he will not try to replace the old law but only "clarify" it.

Along with these "crumbs" to the individual there are also ominous happenings that spell difficult times ahead.

As of May 1977, new BLM "special investigators" were packing guns—"asking for trouble," in one legislator's words. A number of BLM personnel have requested transfers because they do not wish to wear, or be forced to use, firearms. The gut power of the federal government is now stripped naked. Bureau officials in Nevada publicly tone down or deny department gunslingers, although all admit the federal Organic Act of 1976 permits them. In typical after-the-fact government lingo, Interior Secretary Cecil Andrus told the Western Governors' Conference in Anchorage, Alaska, on September 1, 1977, that he may create a new federal police force because "I've got people being shot out in your areas" and because local law enforcement officials "smile about running off feds." While Andrus refused to say where the shooting incidents occurred, Nevada BLM officials, when contacted, stated they "do not believe any shooting incidents took place in Nevada."

Secretary Andrus has also taken up Carter's call for national water-policy reformation, announcing in late August 1977 Interior proposals that would affect large family or corporate agricultural and industrial holdings in 17 western states. The proposals, falling under the 1902 Reclamation Act, restrict operators receiving federal water from owning more than 160 acres (320 for husband and wife) and from leasing more than an equal amount. The operator is to live within 50 miles of his land. Farmers and ranchers with "excess" land would have to dispose of their land within 5 years (the 1902 law says 10 years), with the Department of Interior determining, perhaps by lottery, who can buy land receiving reclamation water.

At present the average farm in western mountain states is 2,139 acres and the average in Pacific coast states is 516 acres. Farmers and cattlemen have objected to the breakup of large efficient farms, vowing legal action. They say this would mean a return to the horse-and-buggy days of subsistence farming, resulting in higher labor and production costs and higher prices for smaller quantities of food. Several million acres of land would be affected, including California's rich Imperial Valley and the Fallon, Nevada (Newlands Water Project), area near Reno. Because federal, state, and state-appropriated private waters often comingle, farmers and ranchers hundreds of miles from federal reclamation projects could be affected. Tampering with water in the West is deadly serious business, and it is not unlikely that the question of water rights and water usage will prove the catalyst in uniting western opposition to runaway federal control.

Those who distrust government are watching these politically oriented developments with interest, waiting for opportunities, and trying to keep the root of the problem—the question of private versus collective ownership—identified. They surmise that private Nevada land ownership may have to await either collapse of the national economy, when the feds might again need land-sale revenue as a source of income, or possibly even the threat of western states' secession from the East (an active council of western states' legislators is already an actuality).

But however the public-domain problem is resolved, as sure as "gambling odds favor the house," Nevada's 13 percenters will continue to give the 87 percenters a run for their money until the battle is won.

Sue Mollison has worked in Nevada for the aviation and mining divisions of the Summa Corporation, and she now reports for Central Nevada Newspapers and works on children's books. Her reprint of Rose Wilder Lane's Give Me Liberty was published in June 1977.