A Lawyer Discusses the Constitutionality of the Cliven Bundy Ranch Saga

Unless you’ve been living under a rock for the past week, by now you’re familiar with the standoff between the Federal Bureau of Land Management (BLM), and 67 year-old rancher Cliven Bundy. Why did this happen? We’ve heard stories from the Bundy’s not paying the feds their grazing fees, to protecting desert tortoises, to Harry Reid’s efforts to build massive solar facilities. But what I wanted was to get down to basics. Was this land grab even constitutional? I decided to find out.

The following are excerpts from my interview with Guy Maisnik, a 30 year real estate lawyer and Constitutional law real property expert, regarding the Bundy’s case against the United States concerning Bundy’s rights to use real property adjacent to his ranch to graze his cattle over the objection of the United States.

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.

AG:  Can you explain the basis of the courts’ ruling?

GM:  The Gardners argued that the United States obtained the land from Mexico in the Treaty of Guadalupe Hidalgo in 1848, but that it had a duty to hold that land in trust for the creation of future states; that the federal government had no authority to retain the land once the state was created; and that when Nevada became a state, all lands within its boundaries became Nevada property. The Gardners argument was based on an 1845 U.S. Supreme Court case known as Pollard.  Pollard addressed the issue of land that was ceded to the federal government by Virginia and Georgia to discharge debts each incurred during the Revolutionary War. Eventually, the federal government created the new state of Alabama out of a portion of the state of Georgia, and the issue was whether certain shoreline property in question belonged to the federal government or Alabama. The court’s verdict: Alabama. The Pollard court concluded that the federal government had no rights to the property in question.

AG:  Do you agree with the Ninth Circuit’s decision in Gardner regarding federal land ownership and its impact on the Bundy case?

GM:  I do not. The Ninth Circuit distinguished the Pollard case because Virginia and Georgia were part of the original thirteen colonies which had independent claims to sovereignty before their statehood, and that Nevada never had pre-statehood sovereignty. This is a twisted and absurd result.  The fact that the federal government was the initial owner of the land that later became Nevada is irrelevant. The Ninth Circuit created an unsupportable distinction essentially out of thin air (very thin, one might add) by reasoning that Pollard did not apply to Gardner.  And once the Ninth Circuit decided that the property in question never belonged to Nevada, it was easy for the Court to invoke the Property Clause of the Constitution that Congress has the power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States and all the broad powers associated.” In other words, the federal government can do whatever it wants with its own property.

AG:  Tell us how the Ninth Circuit applied the Equal Footing Doctrine?

GM:  You mean how the Ninth Circuit misapplied the Equal Footing Doctrine? The Equal Footing Doctrine requires that upon admission to the Union, a new state possesses the same powers of sovereignty and jurisdiction as did the original thirteen states. The Gardners argued to be on equal footing, Nevada had to have title and eminent domain of all lands within its boundaries to satisfy the Equal Footing Doctrine. A reasonable conclusion. However, the Gardner court didn’t think so, and imprudently and improperly held that the Equal Footing Doctrine only applies to the “shores of and land beneath navigable waters” because the particular dispute in the Pollard case was only over shore land. The Ninth Circuit concluded that because the Supreme Court has not extended the Equal Footing Doctrine to “fast dry land,” the federal lands in question were not reserved for the state of Nevada. That is a misapplication of the Equal Footing Doctrine and a complete misreading of Pollard. Here is what the Pollard Court said about federal land: “When Alabama was admitted into the union, on an equal footing with the original states, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain… the United States ha[s] no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a state or elsewhere…..”

The Ninth Circuit misconstrued Pollard, misapplied the Equal Footing Doctrine and along the way stepped on virtually every western state’s rights and freedoms of persons within those states.

AG:  Is it your review that the 10th Amendment also applies to the Bundy’s claims?

GM:  If the District court had gotten the Pollard case right, there would be no reason even to address the 10th Amendment. However, the Ninth Circuit seems to believe that the 10th Amendment doesn’t apply to real property rights, concluding a state may exercise jurisdiction over federal lands within its state so long as its exercise of power does not conflict with federal law. Really? The 10th Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Looks like the court got turned around on that one in Gardner and Bundy. Oh well, maybe next time…

AG:  Maybe this will serve as a wakeup call for all Americans, because your little piece of the American dream could very well be the next land-grab on the Fed’s radar.