Armed agents from the Obama administration are on the precipice of a potentially deadly confrontation with cattle ranchers in Nevada, in a grazing-rights dispute between Cliven Bundy and the Bureau of Land Management. The bottom line is that the feds are absolutely correct in their property-rights claim, but wrong on their violations of the First Amendment. Right or wrong–this situation risks spiraling out of control into deadly violence, fed in part by grassroots frustration over federal power.
Bundy’s Mormon family has ranched in the contested area of Clark County, Nevada, since the 1880s. He owns a 150-acre ranch, and his cattle also graze on adjacent public lands. Those lands are called part of Gold Butte in Lake Mead National Recreation Area, which is federally-owned public land. Bundy claims–incorrectly–that the federal government cannot legally own such land, and therefore that he has full ownership rights to use it at will without paying fees to Washington, D.C.
Large parts of many western states are owned by federal or state governments. While U.S. forests are part of the U.S. Department of Agriculture (USDA), most other types of federally-owned land are under the U.S. Department of the Interior (DOI). The department has regulated private ranchers grazing their herds on these lands since Congress passed the Taylor Grazing Act of 1934.
DOI’s Bureau of Land Management (BLM)–which was created in 1946–administers 245 million acres of public land nationwide. This includes grazing rights on 155 million acres. The Public Rangelands Improvement Act of 1978 created the current system of charging rental fees for ranchers to use these acres to feed their private livestock, and was extended by President Ronald Reagan in a 1986 executive order.
In 1993, Bundy stopped paying grazing fees to the federal government, claiming he “fired” BLM. He admits that he would owe at minimum $300,000 for these fees, if he believed that he was legally obligated to pay at all. BLM spokesperson Kirsten Cannon says the amount is $1.1 million.
The Obama administration says it must act. “For more than two decades, cattle have been grazed [sic] illegally on public lands in northeast Clark County,” reads a BLM statement. It goes on to note that BLM has tried during those years to resolve this matter through the courts, but Bundy will not comply with court orders.
The acres in this dispute are owned by the federal government. Nonetheless, Bundy claims that (1) the Constitution does not permit the federal government to own land, (2) the United States is therefore trespassing by sending agents onto that land, (3) he has a public easement on the land entitling him to access, and (4) he pays state and local fees regarding the land, but is not legally required to pay anything to the federal government.
While he is doubtless sincere in his beliefs, he is wrong. The same Constitution that Bundy claims to be fighting for is the one that authorizes federal statutes regarding these matters, and in Article III creates federal courts to decide such disputes.
The U.S. District Court for the District of Nevada heard his case, and Judge Lloyd George–who is also Mormon–ruled against Bundy. In 2013, the court authorized federal agents to seize any of Bundy’s cattle that he refused to remove from these federal lands. In recent days BLM has seized at least 134 animals, and it is unclear whether they are being held, or have been destroyed (which might enable Bundy to bring an additional legal challenge).
Although it is easy to feel sympathy for the Bundy family’s plight, they are wrong as a matter of law. Multiple provisions of the Constitution empower the federal government to own land, such as the provisions in Article I, Section 8, pertaining to building military bases, federal highways, and postal roads, and the land area for a federal capital (Washington, D.C.). Also the Fifth Amendment Taking Clause says the federal government cannot seize private property unless it does so for a public purpose and pays the previous owner fair market value, necessarily creating the result that the federal government henceforth owns that property.
People go to jail all the time for rejecting the federal government’s lawful authority. For example, people are imprisoned for refusing to pay federal income taxes, offering outlandish legal theories, long rejected by the courts, that federal income taxes are unconstitutional. Some such people claim that the Sixteenth Amendment of the Constitution–which authorizes the income tax–was never actually ratified in 1913, and therefore that such laws are invalid.
Bundy expresses a similar mindset on federal authority. “I abide by all state laws. But I abide by almost zero federal laws,” he explained.
Nonetheless, the federal government is engaged in some illegal conduct of its own. It has restricted citizens’ speech opposing the Obama administration’s actions here to a roped off area with the sign, “First Amendment Area.” One protestor’s sign hit a bulls-eye with the message,”1st Amendment is Not an Area.”
Content-neutral restrictions on speech–such as restrictions on the time, place, and manner of speech–are subject to what is called intermediate scrutiny. An example of such a content-neutral restriction would be an ordinance saying that you cannot speak through a bullhorn in a residential area between 8 p.m. and 8 a.m.
If sued, the court applying intermediate scrutiny presumes that the measure is unconstitutional, and the government bears the burden of showing that the measure is the least restrictive means to advance an important government interest.
It is hard to see any important interests that the government is serving with its cordoned-off area, making hundreds of thousands of acres a no-speech zone for American citizens. If anyone challenges this measure, the smart money would be on a federal judge dropping the hammer on DOI.
Republican Nevada Gov. Brian Sandoval seems to agree. Sandoval–who ironically has the rare distinction among elected officials of being a former federal judge who gave up his lifetime appointment to run for office–condemned the Obama administration’s action. BLM’s cordoning “tramples upon Nevadans’ fundamental rights under the U.S. Constitution,” Sandoval said earlier this week.
America in 2014 is in the midst of unprecedented expansions of federal power. Some are being struck down as unconstitutional by the courts, others upheld (rightly or wrongly). But even though Cliven Bundy is mistaken on the law in this situation, his pushing back against the federal government is in part driven by the same rejection of unlimited government power that has rejuvenated a call for limited government in this country over the past five years.
Hopefully this situation will be resolved peacefully, and it will motivate renewed public debate on what sort of nation Americans should choose in the upcoming elections.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.