Shrinking the West

The Land Legacy Initiative

by Don Bowman

Alaska Congressman Don Young, chairman of the House Resources Committee, introduced HR 701—the Republican face of the Lands Legacy Initiative. The bill would dedicate one-quarter of the annual offshore oil and gas revenues to buy out the prime productive private property in rural America. Hearings began in early March, with Young scheduling testimony from 23 speakers in favor and only two in opposition.

In testimony before the committee, former U.S. Senator Malcom Wallop of Wyoming criticized the witness list. Wallop is founder and chairman of Frontiers of Freedom, an organization dedicated to defending constitutional rights. He said nearly all the witnesses represented interest groups that would benefit financially from the legislation. Noting that Young has announced field hearings for Alaska and Louisiana, two of the states that will receive the most money from the proposal, Wallop called for more extensive field hearings on the bill. Hearings should be held in the Northeast states which are under immense pressure from the preservationists, he said, as well as the Western states that are also feeling the squeeze.

Young’s act, as drafted, would give less money to the coastal states than the 50 percent they should be receiving. Proponents claim that the $378 million per year for federal land acquisition is only $50 to $60 million more than the historic average for Land and Water Conservation Fund acquisitions. The $378 million has just been doubled with another crafty move by the bill drafters. Although the extra money does not come out of the federal coffers, it still reaches into the pockets of taxpayers at the local level.

But Wallop says the bill’s supporters fail to mention some of the fine print. HR 701 would require that all federal funds be matched 50-50 by state and local governments. This doubles the funds available to $756 million per year, putting even more private land into public ownership—though federal agencies are doing a poorer job of managing their lands than private landholders. Wallop is convinced that HR 701 is a big mistake and wonders if it pulls the states into a land grab partnership to avoid risking state legislative turndowns.

Some might think the federal agencies, with a record of losing millions of dollars managing the land they already own, would be against acquiring more problems. However, bureaucracies never ask for cuts in responsibility; they just ask for more funds so they can build a larger power base. The land management agencies have been hounding Congress for more money every year, claiming they just do not have the manpower to do the right job. A farmer or rancher cannot manage land by sitting at his desk looking at computer scenarios. There has to be some active work done on site, if you really want results.

In the 1950s, the U.S. Forest Service and the Bureau of Land Management, with a quarter of the employees they now have, were putting in improvements, maintaining roads and trails and generally increasing multiple use. Nowadays, they do not perform work on the ground, but sit in their huge offices, playing computer games designed to diminish historic multiple use—especially grazing and mining.

Then, there is the poorly publicized fact that the whole land acquisition idea flies in the face of our basic constitutional concept of government. Can we continue to ignore agreements already duly made?

At statehood, the Eastern states received dominion over their lands. Most of the land was sold and put into production. When the Western territories were given statehood, the federal government withheld land, primarily to sell in order to produce needed revenue for the federal government. When Nevada became a state, the purpose of holding the land in federal ownership was to help pay off the Civil War debt through land sales. Nevada, patriotically, agreed. The war had stripped the Union of most of its resources, so in some instances, Union soldiers were given land in lieu of pay. The other option was to sell the land, but even then the question existed whether the initial federal ownership of such an immense amount of land within a state was legal.

The Constitution limits federal land ownership to needful purposes. It also says that if the federal government wants to own land within a state, it has to buy it and get state legislative approval. Nevada’s legislative approval of federal acquisitions was sought by the feds for many years. The federal lands chapter of Nevada Revised Statutes lists those properties approved by the legislature. NRS Chapter 328 includes post offices, the Hoover dam site, military installations, federal buildings, the Nevada Test Site, Lehman Caves, etc. Those approvals are very specific with property descriptions as detailed as any private land transaction. Somehow, without any notification, in the ‘50s, the feds must have decided they didn’t need to go through that exercise anymore and just quit asking for approval. Numerous state officials, including State Lands Administrator Pam Wilcox, have been asked why the approvals have not been kept up. No one seems to know. Shouldn’t our state lawmakers stand up and perform their duties of keeping the federal government in check?

Does a lowly state have the power to stop a land grab? The Utah legislature came out fighting when President Clinton ripped several million acres out of the Beehive State for the Grand Staircase-Escalante National Monument. Legislators would have endorsed a sensible park that was directed to some truly scenic wealth, but Clinton’s executive order was designed to get the attention of the greenies—he needed scope, not quality. Over two-thirds of the monument was a badlands of no aesthetic value. And that two-thirds contained a large deposit of the finest low sulphur coal in world. The coal venture was killed and we now have to import our low sulphur coal from Indonesia. Did this have something to do with campaign contributions by the Indonesians?

Can Congress implement a bill like HR 701 that violates a previous act that has not been repealed? The Congressional act of statehood for Nevada includes a mandate for the federal government that many people will find upsetting. It has to do with the fate of the unclaimed public lands. The Territorial Legislature disclaimed all rights in the unappropriated public lands in favor of the United States—a fact well-known to be recorded in the preamble to the Nevada Constitution.

But historians say this was to clear title to those lands for the next step—one that today would create a huge uproar if it was carried out, with the enviros screaming bloody murder at the very thought of such a heinous idea. The sentence lies there in the Nevada act of statehood for everyone to read. It is another unenforced treaty, much like some of the other treaties made with the Indians. To directly quote the act, it said, "The United States shall (my emphasis) sell the public lands and give five percent of the proceeds to the State of Nevada."

What? Have to sell the public lands? No way.

During Nye County’s legal fight against the federal government in defense of Nevada law, a Department of Justice attorney said that shall merely meant may in that particular clause. I would like to see a defense attorney try to define shall that way in front of Judge Mills Lane. The judge would probably yell at him to go look up the word in a dictionary.

This clause has never been repealed by an act of Congress or by agreement with our state legislature. What would happen if the sales were carried out? Most ranchers could not afford to buy their rangelands even if the price was cheap. Maybe ranchers would not have to buy the land if they already have a preexisting grazing easement, as Wayne Hage claims in his suit now before the U.S. Federal Court of Claims. Would the land have to be of a different property class than now exists, one allowing pre-existing grazing, mining, access and recreation?

On the other hand, the American taxpayer is paying millions to manage something that was supposed to be sold to generate money and Nevada is being cheated of its share of that revenue. Payment in Lieu of Taxes (PILT) funds were offered to offset the lack of tax revenue to the Western states when the Federal Land Management Policy Act was passed in 1976. This was another carrot offered the states to make them think the federal government would be a better caretaker for the whole subject. Now the feds want the money back to help enlarge the lands they already claim—more lands they will be taking off the tax rolls. Can Nevada’s rural counties afford this?