Is Cliven Bundy Right?

Well not about that idiot thing he said when he started off with the words “I want to tell you one more thing I know about the negro...”  When I was studying legal history I called this kind of crud “cringe quotes” where you would be reading a perfectly fine speech by Lincoln about human freedom and then he would say something incredibly racist.  There has been some attempt to rehabilitate what he said, such as here, but at best it only mitigates what is still a pretty racist and ignorant thing to say.  No, there is zero chance that black people were better off under slavery and you have to be willfully ignorant of the evil of slavery to even entertain the thought.

The significance of his dumb remarks is that he doesn’t have a future as the leader of a movement.  Instead he should be treated as just one guy with a complaint that may or may not be just.  Or to quote Gavin McInnes:

At any rate, as Dana [Loesch] points out, this isn’t about some old guy’s views on slavery. It’s about government control. We’re not saying Bundy is the messiah and we accept him as our personal savior. We’re saying the government is wrong.

And that has to be the principle here.  If I can defend the freedom of speech of a guy who cheered on Brett Kimberlin’s suppression of my own speech, I can defend a racist’s claim to grazing rights.  When it comes to the legal issues his racism is beside the point.  If a government lawyer brought it up in court, it would annoy the judge by being irrelevant. Or to quote from Mark Steyn:

the reason the standard representation of justice in statuary is a blindfolded lady is because justice is supposed to be blind: If you run a red light and hit a pedestrian, it makes no difference whether the pedestrian you hit is Nelson Mandela or Cliven Bundy. Or at least it shouldn't: one of the basic building blocks of civilized society is equality before the law.

So like Steyn I will stipulate that Bundy is wrong on racial issues and slavery and it doesn’t mean a damn in regards to his dispute with the Bureau of Land Management.  But is he right in his dispute with the Bureau of Land Management?

In the sense that he has been ordered by the courts to pay the fees, no.  But should he have been ordered to do so?  Was the court correct in saying so?  John Hindraker says yes:

it must be admitted that legally, Bundy doesn’t have a leg to stand on. The Bureau of Land Management has been charging him grazing fees since the early 1990s, which he has refused to pay. Further, BLM has issued orders limiting the area on which Bundy’s cows can graze and the number that can graze, and Bundy has ignored those directives. As a result, BLM has sued Bundy twice in federal court, and won both cases. In the second, more recent action, Bundy’s defense is that the federal government doesn’t own the land in question and therefore has no authority to regulate grazing. That simply isn’t right; the land, like most of Nevada, is federally owned. Bundy is representing himself, of necessity: no lawyer could make that argument.

And certainly my first reaction was, yes, the Federal Government has a right to own land and if they do, they have a right to grant whatever rights they feel like on that land.  They can tell Bundy and his cattle to pound sand and so on.

But I continued to listen and gather evidence.  Dana Loesch said that if you didn’t see his argument you don’t know anything about grazing rights.  Well, I don’t and I kind of wish people like her would explain what she does know.  But I can read cases and I can read interviews, like this one of Guy Maisnik, described by Anita Gunn as a “a 30 year real estate lawyer and Constitutional law real property expert”:

AG:  We just witnessed the standoff between the Bureau of Land Management (BLM) and the Bundy supporters with the BLM retreating. Regardless of what we all witnessed, do you believe Bundy has an uphill legal battle against the United States Government?

Guy Maisnik:  Unfortunately I do, particularly in the Ninth Circuit. This case will need to get to the Supreme Court for Cliven Bundy to achieve judicial relief, and it will be a challenge getting there.  However, I would encourage those who care about freedom to understand the critical importance of Mr. Bundy’s plight and how it impacts every American and America’s future.  Because this case is complex and does not have the emotional appeal of a civil liberties case or a criminal case, it may not get long-term attention. But it’s one of the single most important cases impacting Americans today. This case hits America’s heart and the basic underpinnings of a free society.

AG:  You’ve heard Bundy and his supporters repeatedly claim that the federal government had no right to remove his cattle or impose fees and that the federal government has no right to that land. Is there any validity to this claim?

GM:  The United States District Court of Nevada disagreed with Bundy, and so will the 9th Circuit.  The linchpin of the U.S. Government’s case is United States v. Gardner, 107 F.3d 1314 (9th Cir. 1997), where the federal government prevailed on facts similar to Bundy’s. In Gardner, the US Forest Service issued a ten-year permit allowing the Gardners to graze their cattle in the Humboldt National Forest. Because of a fire that burned over 2000 acres of land, the Forest Service and Nevada Department of Wildlife closed off the land to grazing for two years. Nevertheless, after a short period of time, the Gardners ignored the closure and resumed grazing. The Forest Service revoked the Gardner’s permit. The Gardners argued that the federal government was not the land owner, and that the land belonged to the state of Nevada. The federal district court disagreed, and the 9th Circuit court affirmed the district court’s holding.

AG:  What were the key arguments made by Bundy and the Gardners?

GM:  Bundy’s and Gardners’ arguments were similar, and they both lost. The courts ruled: 1) that the federal government was authorized to retain public lands for its own purposes, and was not required to hold land for the establishment of future states; 2) that the Equal Footing Doctrine did not operate to give the state title to the public lands within its boundaries; and 3) that federal ownership of public lands did not encroach upon the core powers reserved for the states under the Tenth Amendment to the Constitution. There were other arguments and discussions, but these were central.

Well, that gave me something I could check and he is pretty much exactly right.  I mean first, let’s start with something basic.  This case was decided in the 9^th circuit.  So, respectfully, I think that should have been the first sign to Mr. Hindraker that he was getting it wrong.  This is how they dealt with the issue of the land in Gardener:

The claim by Gardners that it is the duty of the United States to hold public lands in trust for the formation of future states is founded on a case dealing with land acquired by the United States from the thirteen original states. In that case, Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845), the Supreme Court discussed the extent of the United States' authority over lands ceded to it from Virginia and Georgia to discharge debt incurred by those states during the Revolutionary War. The Court stated that the United States held this land in trust for the establishment of future states. Id. 44 U.S. (3 How.) at 222. Once those new states were established, the United States' authority over the land would cease. Id. at 221-23. This decision was based on the terms of the cessions of the land from Virginia and Georgia to the United States. Before becoming a state, however, Nevada had no independent claim to sovereignty, unlike the original thirteen states. Therefore, the same reasoning is not applicable to this case, in which the federal government was the initial owner of the land from which the state of Nevada was later carved.

So their view is this: yes, they did that with Alabama (carved out of land ceded by Georgia and Virginia), but that was pursuant to the agreement ceding the land.  It was the terms of their contract.  By comparison, the land in Nevada was obtained by getting the land from Mexico, so tough on them.

Now, if you go back and read the Pollard case, you will see them talk now and then about the cessation agreements but it also says this:

We, therefore, think the United States hold the public lands within the new states by force of the deeds of cession, and the statutes connected with them, and not by any municipal sovereignty which it may be supposed they possess, or have reserved by compact with the new states, for that particular purpose. The provision of the Constitution above referred to shows that no such power can be exercised by the United States within a state. Such a power is not only repugnant to the Constitution, but it is inconsistent with the spirit and intention of the deeds of cession.

Which is admittedly dense language, but the key thing is that the public lands in what became Alabama reverted to the ownership of Alabama, and that doing anything different was not only in violation of the deed of cession from Virginia and Georgia, but “repugnant to the Constitution.”  In other words, unconstitutional.

So it was not merely a matter of the cessation agreement.  It was a matter of constitutional law.

This is part of the Supreme Court’s doctrine of equal footing.  That is, there is no pecking order, no hierarchy among the states.  From the very first thirteen states, to Hawaii and Alaska, each and every state is on equal footing with each other (in terms of legal rights, sovereignty, etc.)  This is true even if the breach of sovereign power is built into the law enabling the creation of the state, and even if the state itself accepts this limitation.  The rights of the new sovereign states are inalienable.

And it applied in the converse as well.  When Texas was admitted into the union, the prior sovereign was the Republic of Texas.  And as an independent republic, Texas claimed some rights that no other state claimed and claimed that they continued to hold those rights even after joining the union.  However, in U.S. v. Texas, the Supreme Court struck down those claims, stating that to grant Texas greater sovereign powers would violate the requirements of equal footing.

So, breaking news, the Ninth Circuit has got it wrong.

And really, when you think about it, I think this is the obviously correct decision.  Right now the amount of land owned by the United States, especially in Nevada, is nothing less than obscene.  Let this handy chart give you a sense of it:

(Source.) The only deceptive thing about this chart is that Alaska is much larger than that in relation to the United States...

...so that 69.1% of Alaska might add up to more actual land than Nevada’s 84.5.  But as a percentage of land, Nevada is the worst.  Why bother to make it a state if feds keep so much of it?  And let’s not forget that with ownership often comes federal criminal law.

And some of that can’t be helped and is indeed fully justified.  As I understand it, there are more Indian Reservations out that way, so more of the land in the West is likely to be something the Feds can’t turn over to the state without breaking our commitments to the natives.  But I don’t see any of that in the Cliven Bundy situation.  The feds have the land... because they want to.

The danger here, is this.  Federal ownership often brings with it federal sovereignty.  As the Department of Justice itself notes:

The Federal government is the single largest holder of real estate in the United States. Federal custody and control over this property brings with it a host of responsibilities, including in some cases federal criminal jurisdiction

So if left unchecked, the endless acquisition or reservation of land can eventually swallow the states whole, pushing aside the sovereignty of the states in favor of the federal government.  Whether you value state sovereignty or not, it is not what the founders wanted.

And it’s not to say that the Federal Government can’t own land.  Obviously they can, and they can even take it from the owner—be it a sovereign state or a private owner—if needed.  So, for instance, if there is a hill over a harbor that is a particularly good place for a fort, then the U.S, military can just take the land from whomever owns it (subject to just compensation and all that).  And the government can acquire and keep land for other purposes, too.  I don’t know if my local post office owns the land it sits on or rents it, but I see no constitutional obstacle to owning it.  But the power to own land is not a power in and of itself, but rather a power implicit to the extent that it is necessary and proper to put other powers into effect.  So the power of the military to protect this country and the power of the post office to do what it does justifies it.  But it can’t be “we are owning this land just because.”  That isn’t good enough.

And yet I don’t hear any other explanation of why they own that land that Bundy wants to graze his cattle on.  At the very least it should be the public land of Nevada, and Bundy can deal with them, instead.

So Bundy is not a hero and not a moral paragon.  But he is right and I would have no qualms defending him in court.

But I’d also tell him to stop talking to the press about things other than his argument with the BLM.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.