Cover Story

Stealing the
Silver State's Story

The USFS Tries Rewriting History

by Steve Miller

t was the story of Nevada, all over the state … or at least so we thought.

Whether Virginia City, or Austin, or Aurora, or Midas, local history usually started more or less the same way.

The prospector saw some sparkle, located a ledge, and recorded his claim. And then, when the news leaked out, from all over the Pacific slope lots of other folks rushed in, feverish with dreams of wealth, wanting to try their luck, too.

They were Irishmen pushing wheelbarrows, bratwurst-frying mining experts from Baden-Wurttemberg, painted Jezebels from older, played-out mining camps, and lawyers following their nostrils amid the scent of lucrative litigation.

There were pick-ax laborers, Frisco capitalists rumbling in on the fastest stage, scuzzy journalists, and --- sooner or later, if the ore lasted --- folks setting up ranches and truck farms to supply the boomtown with hay for the horses and food for the folks.

That, time and again, is the Silver State story as recounted in the old newspapers, history books, and, indeed, movies. It is not the Nevada story as the U.S. Forest Service has been seeking to recast it, especially in documents the agency has been quietly filing since at least the mid-Eighties.

As the Forest Service spins it nowadays, all these early Nevadans were --- not to put too fine a point on it --- just a bunch of bums. Specifically, they were trespassers --- defined in law as those who "invade the property, rights or person of another without his consent and with the actual or implied commission of violence; especially, to enter onto another’s land illegally."[1] Because of this asserted "illegality," water rights which ranchers in Nye County’s south Monitor Valley have held for over a hundred years should be taken away, says the agency, and given to it.

The arena where the federal government is trying to make this remarkable argument is the current adjudication of Monitor Valley waters being conducted by Nevada’s Office of State Engineer. That office will soon file its final order of determination on the matter with the Fifth Nevada Judicial District Court in Tonopah. That determination will include the state engineer’s analysis of the historical record of stockwatering --- and the relative support which that record provides the various claimants --- i.e., the chain of ranchers and settlers before them, all the way back to Nevada’s first days as a territory and a state.

In his quasi-judicial role as an advisor to the court, State Engineer Mike Turnipseed will report his final findings as to when actual beneficial use of the different Monitor Valley water sources first occurred, and, therefore, when legal vesting of the water rights of the different claimants took place --- if it did.

When water rights that date back into the era prior to Nevada’s 1905 Statutory Water Law are at issue, the rule that will guide the State Engineer in his determinations is the prior appropriation doctrine --- often abbreviated as "first in time, first in right." And that presents a real problem for the U.S. Forest Service.

It was 1862 when silver was discovered in Austin, producing by just the next year an inrush of hundreds of prospectors and settlers into Central Nevada by way of California.

By the end of the 1870s, Monitor Valley had been settled and most of the arable land had been put to beneficial use. The early settlers had cleared and irrigated the land for their base properties and were grazing their livestock on the surrounding public lands.

Thus, over 30 years before the Toiyabe-Humboldt National Forest or even the U.S. Forest Service itself[2] or came into existence, Nevadans had already appropriated virtually all the water in Monitor Valley for beneficial use. Under Nevada law, that means they had also established property rights to the use of those waters.

That’s the nub of the problem for the Forest Service. Agency bureaucrats over the years have become thoroughly inculcated with environmentalist eco-dogmas, and they really want those rights to Monitor Valley waters. But they also refuse, unless compelled, to pay market prices for those rights.

Not only would market prices far exceed the funds Congress makes available for this particular Toiyabe-Humboldt National Forest, but it would set, from the viewpoint of federal agencies, a frightful precedent. All over the American West there are privately owned water rights which Forest Service and Bureau of Land Management bureaucrats are trying to secure. To deal honorably with those owners and simply buy the water rights at market rates would completely derail the environmentalist movement as it currently exists --- and, no doubt, the bureaucrats who’ve hitched their careers to it. The huge costs involved, were federal agencies to actually heed the takings clause of the Bill of Rights’ Fifth Amendment, political observers agree, would be rejected out of hand by taxpayers, and thus by Congress. And that would bring the entire environmentalist fantasyland crashing to the ground.

So that is why the federal land agencies have increasingly turned to "alternative" strategems for pursuing their tacitly acknowledged agenda[3] of taking over privately owned water rights in the West. An adjoining story, Wayne Hage’s War, reports Forest Service attempts to use provocation and intimidation to get water rights. Likewise, stigmatizing Nevada’s early settlers as "trespassers," appears to be a legal contrivance intended to accomplish the same end. For if federal lawyers can find, and convince, enough ignorant and/or compliant federal judges that Nevada’s original settlers were illegal interlopers, there is a chance that over a hundred years of vested-rights water history could be thrown out.

Or at least partially thrown out. Because Toiyabe Forest Supervisor R. M. "Jim" Nelson and Forest Service lawyer Kenneth Paur also want to have it the other way --- to argue that the energy the "trespassers" invested, in beneficially appropriating the water, did in fact initiate a valid succession of interest --- but only for the benefit of a Forest Service bureaucracy that did not even exist until over a quarter of a century later.

"It is clear that much of the water resource on the National Forest was first put to beneficial use for livestock watering purposes by trespassers," said a 1987 letter from Nelson’s office to then-engineer Pete Morros. "It is this succession of interest which was initiated by trespassers on the public domain, legitimized by the issuance of grazing permits in 1908 and continued through the issuance of a succession of grazing permits to the present time, that support claims of vested water rights by the United States of America-Forest Service."

Nelson’s position --- an amazing "knee slapper," in the words of one water rights specialist --- was rejected summarily by current State Engineer Mike Turnipseed in his office's 1996 Preliminary Order of Determination for the adjudication.

"The United States of American Forest Service (USFS) filed numerous claims of vested and reserved rights for stockwatering and wildlife purposes," wrote Turnipseed. "These proofs are determined to be invalid and the State Engineer is recommending to the Court that these proofs be rejected in this adjudication."

The proofs were held invalid, said Turnipseed, "on the grounds that the claimed use is stock water which, in all cases, duplicates the claims filed by others who tracked to the original users."

It’s expected that it will take many more years and the U.S. Supreme Court to eventually decide this fight. For years a flock of federal attorneys have already been commuting in and out of Nevada from all over the nation[4], and the ability of the federal agencies to continue spend taxpayer-monies on litigation as long as they want is perhaps their chief advantage.

In the courts, Nevada’s ranchers and the State Engineer will argue, in the words of Carl Haas, that "Mr. Nelson … unilaterally repeals the Act of Congress of July 26, 1866, without bothering to consult Congress" and "rewrites history by reversing the promise of the esteemed founder of the Forest Service in a manner that would put George Orwell’s prediction to shame."

On the other hand, lead Forest Service attorney Kenneth G. Paur will probably repeat arguments he made in a 1996 pre-hearing brief --- that the act of 1866, despite its references to water for "agriculture" and "other purposes," was never intended to endorse vesting of water rights for stockwater purposes.

But perhaps what is most interesting about the U.S. Forest Service’s resort to the "trespasser" label is not the legal arguments as such, but what the word says about the mindset of the federal bureaucrats themselves.

To long-time Westerners who’ve personally experienced the change that’s come over the U.S. Forest Service in recent decades, the word trespasser says volumes. Whether a rancher or a metal-detector hobbyist, a miner or a pine-cone collector, a hunter or a fisherman, the increasingly common report is the experience of being seen, and treated, when on the federal lands or in the national forests, precisely as a trespasser. It is the clear sense that the public is not at all welcome on the public lands.

Like the Department of the Interior, the U.S. Forest Service evolved in an era, during the late 19th Century, of widespread infatuation with the supposedly scientific possibilities of command-and-control administration. And just as the Eastern European archetype of that idea, the Soviet Union, produced a more or less paranoid commissar mentality, so has the command-and-control model done so, manifestly, in the U.S. federal land agencies.

In many ways, the basic institutional difficulty the Forest Service has is simply that 19th Century America was a much freer place than today’s bureaucratic mind can tolerate. In the settling of the American West, nobody was really expected to wait upon the federal government before setting up civilization[5]. And that has been true right from the beginning of America --- from when "the West" was just west of Virginia, and the Articles of Confederation had just gone into effect.[6]

For example, after his return from a western journey in 1784, George Washington noted in a letter that settlers were pouring into "the West" and may of them were squatting on lands north of the Ohio, causing discontent among the Indians. Writing R. H. Lee, Washington said "The spirit of emigration is great; people have got impatient; and though you cannot stop the road, it is yet in your power to mark the way."

Thus Congress immediately was called upon to decide not whether the public domain was to be disposed of, but how. The resulting ordinance, in 1785, was a compromise between a measured New England model, where new settlements had only been permitted in compact bodies and after prior government survey, and an almost totally laissez-faire model from the South, where "[n]ew settlements were largely the work of individuals, who were permitted to locate on any unappropriated land that might suit them, mark their own boundaries, and record their claims accordingly[7]." Such settlers, in the vernacular, were "squatters."

Usually the term signified, writes Paul Johnson in his new A History of the American People[8], the land-hungry who "had got there first, paid over money immediately after the survey but before the land was ‘sectionalized’ for the market," even though this risked their title being challended by non-resident purchasers.[9]

"The squatter ideal is one of the oldest things in American life." wrote George Stephenson in his 1917 study of politics and the public lands. "It goes back to the very first years of colonial history. Squatting on waste lands was a right and the squatter’s point of view was that laws interfering with this right were unjust and of non-effect."[10]

And the U.S. Congress repeatedly agreed. Time and again, throughout the entire course of the 19th century and well into the 20th, Congress gave its legal sanction, after the fact, to the "pre-emption" of land --- squatting’s more polite synonym. The model that the colonial South had followed --- laissez-faire --- continued to operate and receive official consent.

And it was largely under that banner of laissez-faire that the American West was settled --- no matter how much today’s would-be commissars may gnash their teeth and try to re-write history.

"The mining regions and the cattle country were alike in that they were both occupied before there were local or federal laws governing the industries concerned," wrote Dan Elbert Clark [11]. "Both the miners and the cattlement drew up regulations for their own protection and observance." The mining rules governed the size and location of claims, the use of water, the methods of settling disputes and more. "So well were these rules drawn up, and so admirably were they adapted to needs of the mining business, that they became the basis of all future legislation on the subject." The story was the same "in the cattle country, where the stockgrowers’ associations were the first legislative bodies for the industry, and adopted regulations that later became embodied in the laws of western Territories and States."

Those rules and customs were also explicitly recognized and endorsed, in law, by the U.S. Congress:

Whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same…[12]

Although the American South had contributed so much to the spirit of freedom that was settling the American West in the mid-19th Century, as slavery became the nation’s defining issue Dixie began to flee from its original heritage of liberty. Increasingly, to defend its "peculiar institution," the South moved to exert its political power in ways much more consistent with the implicitly totalitarian logic of slavery.

Thus, especially during the years after 1852, it was the South that most doggedly feared and fought the West’s potent Free Soil movement and the phoenix-like homestead bills that were its political expression. The reason for fear was simple: the slave states had come to see that the new states arising on the western lands would always be, necessarily, inhospitable to the institution of human bondage.

"Better for us," wrote the Columbus (Miss.) Democrat, "that these territories should remain a waste, a howling wilderness, trod only by the red hunter than be so settled and governed."

Thus, in its fight against the laissez-faire settlement of Nevada’s Monitor Valley, today’s U.S. Forest Service will find that its historical ally was actually the American Slaveocracy. u

Steve Miller is Managing Editor of Nevada Journal.

Footnotes

[1] American Heritage Dictionary of the English Language, 1969  [back]

[2] In 1898 the embryonic Forestry Department of the Department of the Interior was pieced together under the leadership of Chief Forester Gifford Pinchot. Seven years later, in 1905, Pinchot and President Theodore Roosevelt engineered the transfer of the agency to the Department of Agriculture. Today’s Toiyabe National Forest, covering much of central Nevada, also originated with Roosevelt --- in a wholesale, nose-thumbing-at-Congress, executive proclamation of 21 new forest reserves in February, 1907. [back]

[3] A report on the development of Forest Service water rights policy was forwarded to a House of Representatives committee in June 1984 from the agency’s Director of Watershed and Air Management, Robert H. Tracy. Included was a nine-example memo on "how issuance of a water right to a permittee could hinder Forest Service management of the wildlife and range resources." Another page --- dealing with "valid water rights held by another party for existing water uses on the National Forest System."--- declared current policy is that "[w]ater rights for water used by permittees … will be in the name of the United States when both the water source and water use is on National Forest Systrem lands" and agency manager "alternatives are limited" or "efficiency is hampered" if "the water right is held by another party." Finally, page IV-41 of the most recent Land and Management Plan prepared for the Toiyabe National Forest explicitly says, "Water needed for National Forest System management, but not available under state law and not meeting the Supreme Court criteria for a reserved right under the Organic Administration Act, will be secured by citing the applicable federal law and conditioning occupancy permits." In other words: if ranchers want to continue to exercise their grazing permits, they must acquiesce to the extortion of their water rights. [back]

[4] Commuting into Carson City from all over the United States have been federal attorneys representing the U.S. Department of Agriculture, the U.S. Department of Interior and the U.S. Department of Justice. Lead Forest Service attorney Kenneth D. Paur comes from the Department of Agriculture offices in Ogden, Utah. [back]

[5] See especially Stephenson, George M., The Political History of the Public Lands, from 1840 to 1862; From Pre-Emption to Homestead, (New York, 1917.) [back]

[6] Clark, Dan Elbert, The West in American History, p. 243. (New York, 1937) [back]

[7] Clark. p. 244. [back]

[8] HarperCollins., New York, 1998. [back]

[9] Op cit., p. 292. [back]

[10] Stephenson, p. 21. [back]

[11] Clark, p. 611. [back]

[12] Act of Congress, July 26, 1866. [back]


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