The West fires back

Geoffrey Lawrence

Some will call it an ultimatum.

It is. But an ultimatum is often necessary when one party refuses to recognize the constitutional rights of another.

And that's why Utah Gov. Gary Herbert recently signed into law legislation challenging the federal government's authority to occupy state lands. Utah's HB 148, the Transfer of Public Lands Act, sets a hard deadline — Dec. 31, 2014 — for federal authorities to relinquish control of federally occupied lands to that state.

Standing by when Gov. Herbert signed the bill into law were important members of his state's congressional delegation, including U.S. Sens. Orrin Hatch and Mike Lee. Their presence indicated that Congress will soon be forced to address an issue of paramount importance to our federalist system of government that has, for too long, simply been swept under the rug and ignored: the Equal Footing doctrine.

Utah's latest move actually piggybacks onto a series of moves made by Nevada lawmakers over the past several decades that asserted the Silver State's right to be accepted into the Union on an equal basis with the original states. The congressional enabling act that authorized statehood for Nevada, after all, proclaimed that Nevada "shall be admitted into the Union upon an equal footing with the original states, in all respects whatsoever."

It then went on, however, to stipulate conditions for Nevada's acceptance into the Union to which the original states were never subjected. Key among those conditions was the requirement that Nevadans "disclaim all right and title to the unappropriated [as of 1864] public lands lying within [the state's borders]."

In 1979, Nevada lawmakers passed into law the original "Sagebrush Rebellion" statute. It challenged the federal government's authority to occupy most of the land within the state's borders, based upon the argument that the occupation violates the state's Equal Footing rights.

Legislators asserted that "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."

Indeed, federal case law supports the original claims of Nevada lawmakers. One notable U.S. Supreme Court opinion that was explicitly cited by lawmakers at the time, Pollard v. Hagan, says, "…the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama or any of the new states were formed; except for temporary purposes." As soon as new states were formed, said the high court, "the power of the United States over these lands as property was to cease."

In the mid-1990s, Nevadans took another step toward freeing our state of federal land dominion by acting to repeal the disclaimer of interest in public lands from the state's constitution. Nevada lawmakers voted unanimously in 1993 and 1995 to strike that provision from the state's constitution and the motion received overwhelming popular support on a 1996 ballot question.

As a result, the disclaimer of interest no longer appears in the current version of Nevada's constitution. But a curious footnote remains, indicating that, because the provision was required by the state's congressional enabling act, repeal cannot become effective without congressional consent or until "a legal determination is made that such consent is not necessary."

Not surprisingly, Congress has failed to act in the 15 years since Nevadans approved the constitutional amendment.

Now that our neighbors to the east have raised the bar, Utah's ultimatum can go before the U.S. Supreme Court, which has original jurisdiction over all cases between a state and the federal government, under Article III, Sec. 2, Para. 2 of the U.S. Constitution.

Other Western states are now considering similar legislation.

Given its history and its economic interest, Nevada should be next to rejoin the fight.

Geoffrey Lawrence is deputy policy director at the Nevada Policy Research Institute. For more visit This article first appeared in the June 2012 edition of Nevada Business.

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Geoffrey Lawrence

Geoffrey Lawrence

Director of Research

Geoffrey Lawrence is director of research at Nevada Policy.

Lawrence has broad experience as a financial executive in the public and private sectors and as a think tank analyst. Lawrence has been Chief Financial Officer of several growth-stage and publicly traded manufacturing companies and managed all financial reporting, internal control, and external compliance efforts with regulatory agencies including the U.S. Securities and Exchange Commission.  Lawrence has also served as the senior appointee to the Nevada State Controller’s Office, where he oversaw the state’s external financial reporting, covering nearly $10 billion in annual transactions. During each year of Lawrence’s tenure, the state received the Certificate of Achievement for Excellence in Financial Reporting Award from the Government Finance Officers’ Association.

From 2008 to 2014, Lawrence was director of research and legislative affairs at Nevada Policy and helped the institute develop its platform of ideas to advance and defend a free society.  Lawrence has also written for the Cato Institute and the Heritage Foundation, with particular expertise in state budgets and labor economics.  He was delighted at the opportunity to return to Nevada Policy in 2022 while concurrently serving as research director at the Reason Foundation.

Lawrence holds an M.A. in international economics from American University in Washington, D.C., an M.S. and a B.S. in accounting from Western Governors University, and a B.A. in international relations from the University of North Carolina at Pembroke.  He lives in Las Vegas with his beautiful wife, Jenna, and their two kids, Carson Hayek and Sage Aynne.