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Home / Opinion / Commentary / Bunkerville myths debunked: response to Rep. Bob Thorpe’s Cliven Bundy commentary

Bunkerville myths debunked: response to Rep. Bob Thorpe’s Cliven Bundy commentary

It would be refreshing if our elected officials would occasionally come armed with facts instead of merely opinions.  Rep. Bob Thorpe freely admits that he is “unfamiliar with the (Bundy) legal case.”  One would think that an Arizona lawmaker that is interested enough to travel to Nevada and meet with the people assembled at the Bundy “event” would be intellectually curious enough to look into the legality of actions on both sides of the dispute.  I sincerely hope that Rep. Thorpe understands Arizona history enough to know how and why land ownership patterns within our state (and the broader American West) came about.

Ironically, the merger of the U.S. Grazing Service and the General Land Office (GLO) is what formed the Bureau of Land Management (BLM) in 1946.  Among other things, the mission of the Grazing Service was intended to “stop injury to the public grazing lands by preventing overgrazing and soil deterioration.”  The GLO managed the disposal of vast tracts of federal lands until the Conservation Era, which was ushered into the mainstream by none other than Republican President Theodore Roosevelt. (T.R. formed the United States Forest Service and signed the Antiquities Act, which allows the creation of national, monuments.)  Having an agency like BLM, whose mandate and mission is to manage lands for multiple-use, ensures that there will be controversy on almost any decision they make or action they take.

The Arizona Enabling Act of June 20, 1910, allowed the territory to prepare for statehood.  The act states in Section 20 that “the people inhabiting said proposed state do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof and to all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States…”   The language in the Nevada Enabling Act is very similar to that of Arizona’s.  Congress holds most of the powers that deal with the disposal of federal lands.  If Rep. Thorpe thinks that Western public lands should be relinquished to the various states, he needs to take it up with Congress.  It is highly unlikely that Congress will turn over federal lands to the states, because our public lands have very broad support from large constituent groups from all over the country.

The BLM is a federal agency within the Department of the Interior.  As a part of the executive branch of our government, the BLM is tasked with enforcing the laws that Congress creates.  It was Congress that passed the Endangered Species Act that listed the desert tortoise as a threatened species.  Once a law is passed, the executive branch (through the agencies) has a duty to enforce the law, and the courts are tasked with interpreting the law.  The BLM has been given broad authority to manage public lands through the Federal Land Policy and Management Act of 1976.  If Rep. Thorpe thinks that certain environmental laws are not in the public interest, or that the BLM has over-reached in its enforcement of environmental or other laws, then Congress and the courts are the proper venue for change.

Fees for grazing cattle on federal lands are not done by competitive bid or fair market value, but are instead based upon a formula.  Attempts at fee reforms have been attempted in the recent past, but have not been highly successful.

Civil disobedience is a long and cherished tradition in our America, but confrontation between armed federal agents and armed citizenry is troubling on many levels.  I pose the question as to how Occupy Wall Street protesters would have been treated had they been armed like the Bundy sympathizers.

It is true that BLM probably unwisely used overly aggressive law enforcement in an effort to impound Bundy’s cattle.  It is also true that Mr. Bundy continues to ignore lawful decisions made by federal judges.  Even if Rep. Thorpe thinks that BLM was overly aggressive, I would hope that he also states publically that citizens should obey the rule of law.  Mr. Bundy has a grazing lease, not a grazing right.  The terms of a federal grazing lease can lawfully be modified.

It is widely reported that Cliven Bundy’s parents purchased the 160 acres he now owns in 1948, and they did not start raising cattle until the 1950s…so much for his claims of ancestral rights.  These lands were taken into United States ownership in 1848 by the Treaty of Guadalupe Hidalgo, which ended the Mexican-American War.  If there were any valid ancestral rights then certain Native Americans would be at the front of the line and well ahead of Mr. Bundy.

The legal case is not complex.  Mr. Bundy continues to violate the law and ignore court ordered mandates.  He is entitled to the same set of laws and system of justice as the rest of us.  But like the rest of us, he is not entitled to break laws or ignore court orders because he does not agree with them.

The BLM’s website defines “Payments in Lieu of Taxes” (or PILT) as “Federal payments to local governments that help offset losses in property taxes due to non-taxable Federal lands within their boundaries.”  The website shows that Coconino County received over $1.5 million  under this program from the federal government in 2013.  In total, Arizona counties received over $32 million in PILT payments in 2013.  Perhaps Rep. Thorpe would care to sponsor legislation that would refuse this federal largesse.

I would also urge Rep. Thorpe to look into the history and true philosophy of the “sovereign citizens” movement(s).  Mr. Bundy has used sovereign citizen language in many interviews.  These groups apparently do not think federal or state statutes are valid and that a county sheriff is the highest law enforcement officer in the country.

Recreational use of federal lands in the West continues to grow.  Traditional extraction industries and agricultural and livestock interests obviously want to continue to preserve the status-quo.  I would challenge Rep. Thorpe to look into the significant local revenues that are generated from tourism and recreation that takes place on public lands managed by the various federal agencies. The Western landscape will continue to evolve with changing public opinions and new or revised public land laws.

In closing, I will defer to the late great Senator Daniel Patrick Moynihan, who is widely quoted as saying that “Everyone is entitled to his own opinion, but not to his own facts.”

— Steve Hansen is a Democratic candidate for the Arizona House of Representatives in Legislative District 13.  He was employed by BLM from 1989 until his retirement in January 2014.  He managed the BLM’s land surveying program in Arizona for the last 10 years of his career.

4 comments

  1. Thank you for a rational answer to an irrational situation. Rep. Thorpe considers himself a constitutional scholar becasue he wrote a self-published book; he is clearly on the wrong side of this situation and most others that he has promoted in our legislature. He was elected by less than a third of registered voters in LD6 and certainly doesn’t represent me or anyone I know. Today he walked in the Armed Forces day parade with the Tea Party float so I hope the sane citizens realize what a mistake they made and vote him OUT in November.

  2. I have some questions for Mr. Steve Hansen.. Long ago this land which is now within the borders of the State of Nevada was occupied by Native Americans and also may include Mexican or Spanish up from Mexico way. I generalize because different areas have different history. At some point the land became a territory of the United States. Other than protected Indian lands, your claim that federal government law is applied to publicly owned land within the states. This is where things get a bit confusing and where my questions arise.
    In the Constitution there are provisions for ownership and control of territorial lands and insular lands. Also permissions for the management of certain other lands to include erection of forts, magazines, arsenals, dockyards, and other needful buildings. Where in our constitution are the permissions for the federal government to own grazing lands or forest lands within the various states? As a resident of Oregon this question has been on my mind since in the early 80′s when the Spotted Owl, under the Endangered Species Act was used to control land use and devastated the economy of hundreds of Oregon communities for the last 30 years. Where in our foundation documents (US Constitution) is authority given to federal government own lands within the states?

  3. The Congressional Research Service wrote a report in 2007 entitled “Federal Land Ownership: Constitutional Authority and the History of Acquisition, Disposal and Retention.” The report states that:

    “The U.S. Constitution addresses the relationship of the federal government to
    lands. Article IV, § 3, Clause 2 — the Property Clause — gives Congress authority
    over federal property generally, and the Supreme Court has described Congress’s
    power to legislate under this Clause as without limitation.”

    http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL34267_12032007.pdf

  4. The Congressional Research Service (CRS) prepared a report in 2007 entitled “Federal Land Ownership: Constitutional Authority and the History of Acquisition, Disposal and Retention.” The report states in the summary that:

    “The U.S. Constitution addresses the relationship of the federal government to lands. Article IV, § 3, Clause 2 — the Property Clause — gives Congress authority over federal property generally, and the Supreme Court has described Congress’s power to legislate under this Clause as without limitation. The equal footing doctrine (based on language within Article IV, § 3, Clause 1), and found in state
    enabling acts, provides new states with equality to the original states in terms of constitutional rights, but has not been used successfully to force the divestment of federal lands.”

    http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL34267_12032007.pdf

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