Washington versus the West

States are challenging Congress's ability to control Western lands

By Geoffrey Lawrence
  • Tuesday, April 3, 2012

A battle brewing for a century and a half is now beginning to erupt into a loud and vigorous confrontation in the American West.

Westerners have always resented the government land monopoly that Washington, D.C., imposed on the Western states, constricting both growth and livelihoods. Western leaders also have long seen their states treated as colonies forced to serve Eastern interests — rather than as sovereign states admitted to the Union on "equal footing" with Eastern states, as Constitutional law requires.

Since entering the Union, Nevadans have faced more severe restraints on the use of their land than residents of any other state. At a minimum, some 86 percent of the land within the state's boundaries is controlled by one federal agency or another.  Nevada lawmakers have long pointed out that this violates the "equal footing" standard laid out in federal case law, and they have repeatedly sought redress of this grievance.

In fact, perhaps no other issue to arise in Carson City has enjoyed such widespread support as the need to secure the state's rights to its own land.  In 1979, Nevada lawmakers passed the "Sagebrush Rebellion" statute, rejecting the constitutionality of federal claims to unappropriated lands in Nevada. 

It declared: "The attempted imposition upon the State of Nevada by the Congress of the United States of a requirement in the enabling act that Nevada ‘disclaim all right and title to the unappropriated public lands lying within said territory,' as a condition precedent to acceptance of Nevada into the Union, was an act beyond the power of the Congress of the United States and is thus void."

During the 1993 and 1995 legislative sessions, Nevada lawmakers from both chambers voted unanimously to remove from the state constitution this disclaimer of interest in public lands originally required by the state's Civil War enabling act.  In 1996, as well, Nevada citizens voted overwhelmingly to endorse the removal. 

Because the disclaimer was required by Congress's enabling act, however, its removal cannot become effective by Nevada's will alone. Either the consent of Congress is needed or "a legal determination ... that such consent is not necessary," according to the constitution's current footnotes.

Despite the Western agitation, Congress has obstinately refused to even acknowledge it.

But the clarion call for freedom from Washington's domination is again resonating across the West.

Last month, with U.S. Sen. Orrin Hatch and other prominent members of his state's congressional delegation standing by, Utah governor Gary Herbert signed into law HB 148, the Transfer of Public Lands Act.  The law lays the foundation for a major legal confrontation between the State of Utah and the federal government before the U.S. Supreme Court.  

"On or before December 31, 2014," says the law, "the United States shall ... extinguish title to public lands and ... transfer title to those lands to the state [of Utah]."

Exempted from the title-transfer requirement are lands currently belonging to the National Parks System or lands that are designated within the National Wilderness Preservation System.  Utah's new law would preserve these lands as national treasures but would open up more of the state's land for the benefit of state residents.

Lands transferred to state control would become eligible for private auction and development — whereupon they would enter the property tax rolls and begin to generate public revenues for state residents.  In addition, five percent of the proceeds of these sales will be deposited into Utah's permanent State School Fund.  The remaining 95 percent of proceeds will be returned to the federal government — an extremely generous provision given that the federales have unconstitutionally laid claim to those lands for more than 150 years.

A century and a half of federal domination has made it clear that Western states must take action to force Congress to recognize their constitutional "equal footing" rights.  The language of Utah's new law is the most direct and forceful step to do this to date.

More than any state, Nevada stands to benefit from similar legislation.  Silver State lawmakers should reinvigorate the state's initiatives of '79, '93 and '95 and join with their Utah counterparts.

A Silver State Transfer of Public Lands Act would serve notice to Washington that, in Nevada, federal land dominion is no longer welcome.

Geoffrey Lawrence is deputy policy director at the Nevada Policy Research Institute. For more visit http://npri.org.

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