Feds must honor the promises they've made on western lands

Whither the state’s effort to take control of public lands?

In March 2015 Congressman Mark Amodei, who represents northern Nevada, introduced H.R. 1484, dubbed the Honor the Nevada Enabling Act of 1864 Act, which, if passed, would require the Departments of Agriculture and Interior to convey to Nevada a portion of the federal public lands they now control and thus partly fulfill an implied promise do so when Nevada became a state 152 years ago.
The House Natural Resources Subcommittee on Energy and Mineral Resources finally got around to conducting a hearing on the bill this past week, though Amodei had been seeking such a hearing for more than a year. The subcommittee took no vote and Amodei is under no illusion the bill has a chance of passage in this session of Congress.

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“I had an opportunity to meet with President-elect (Donald) Trump in August,” Dahl said in his opening remarks. “I said, ‘If you had a hotel with 10 floors on it and eight of those floors were controlled by a bureaucracy that you had virtually no control over that was over 2,000 miles away, how would that work?’
“And he said, ‘I think that you’re actually closer to 90 percent owned and controlled in the state of Nevada by the federal government than you are to 80.’ And that’s true — 87 percent of the state of Nevada is owned and controlled by the federal government.”

[link to lasvegastribune.net]

Broken Compact

The Hollowing-Out of Nevada Statehood

Before Nevada joined the Union in 1864, the U.S. Congress explicitly promised more than two dozen times that the new state would be on an equal footing with the original states.

That promise was not kept.

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The covenant that Congress broke

As the 1828 House committee report noted, those terms were part of an implicit contract between the states and the federal government:

When these States stipulated not to tax the lands of the United States until they were sold, they rested upon the implied engagement of Congress to cause them to be sold, within a reasonable time. No just equivalent has been given those States for a surrender of an attribute of sovereignty so important to their welfare, and to an equal standing with the original States. (Emphasis added.)
President Andrew Jackson, five years later, would make a similar point. In a veto message to the Congress, he reviewed the history of America’s enabling acts and wrote, “It can not be supposed the compacts intended that the United States should retain forever a title to lands within the States….”

Thus, at the time of Nevada’s entry into the Union, the enabling acts were recognized as, in essence, terms being offered by Congress to the people of the territories: If they would organize themselves into representatively republican assemblies and meet other conditions Congress set forth in the enabling acts, the federal government would sell or otherwise dispose of the unappropriated lands within the new states’ borders, opening those lands up to settlement and commerce. Additionally, to get the new states up and running, the federal government would share with them some of those land-sale revenues.

Of course, for the federal government to be able to sell those lands, title on them had to be clear. No market existed for encumbered properties with clouded titles.

This gets to the reason why one of the conditions set by Nevada’s Enabling Act was a requirement that the territorial constitutional convention include in its draft constitution the now-infamous disclaimer clause.

That clause — which has long confused readers unaware of its full historical context — states:

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 …

Counter to the impression that many Nevadans still have, Congress did not require this provision in order to forever lock the Silver State’s unappropriated public lands away from its citizens and into permanent federal ownership.

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So the actual purpose of the Nevada Enabling Act’s condition that territorial residents disclaim “all right and title to the unappropriated public lands lying within said territory” was simply to clear title, so the lands could be sold.

[link to nevadajournal.com]

The Federal Government Should Follow the Constitution and Sell Its Western Lands


The Supreme Court correctly and narrowly interpreted the Property Clause in 1845, holding that the clause gave rise to a constitutional duty to dispose of its land holdings. Unfortunately, the Court made a mess of the Property Clause in 1976, holding that its power was “without limitation” in a case involving the theft of burros from federal land. Properly read, that ruling is limited to the holding that while the federal government owns land, states may not interfere with that land; it says nothing about the federal government’s continuing duty to dispose of its lands.

Moreover, westerners who seek authority over BLM and Forest Service land, not including designated wilderness areas or parks and wildlife refuges (after all they are held by the National Park Service and the Fish and Wildlife Service) argue that yet another provision mandates a federal duty to dispose of federally managed land: that is, the enforceability of the Enabling Acts under which the states were admitted. Although opponents point to the “forever disclaim all right and title to the unappropriated public land lying within” the new state’s boundary language in those Acts, the fact is, the provision was included to protect the clean title of the United States so that the United States could dispose of or sell the public lands.

Read more at: [link to www.nationalreview.com]

If I recall they have released a small amount of federal lands for private purchase, but not nearly enough to restore Nevada sovereignty.

I really hope this bill gets traction in Congress once Trump is President. It's long past time to correct these injustices.