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“Nevada is an old whore.”
Growing up in rural Nevada, I used to hear old timers use this phrase. It was kind of vulgar, and I never gave it much thought. But the older and more cynical I get, I think I know what they meant. If you pay for it and you have enough political clout, she will do just about anything you ask.
I have read a lot about rancher Cliven Bundy lately, and it seems to me that nobody has gotten it quite right. That being said, Logan Churchwell and Brandon Darby at Breitbart are an exception, did a fantastic job, and deserve a great deal of credit for their effort. Moreover, I would not have some of the information I need to write this piece had it not been for their diligence.
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Not all rights are created equal. A grazing right, nor a water right is a constitutional right. Water rights were acquired when the Homestead Act urged folks to go west to populate our western border. They were property rights earned when folks put water resources to “beneficial use”; and yes, even today they run with the land unless stated otherwise in a deed. When you lose a water right originating on federal land adjacent to the ranch you privately own in fee simple, it greatly reduces your property value. In fact, it destroys it. You own that right separate and apart from your property. But as I stated above, not all rights are equal. Grazing rights were never recognized nor established as a legal property right in the United States. They can be extinguished by the BLM pursuant to the 1934 Taylor Grazing Act.
Consequently, in 1993, with the swipe of a pen, the government took Bundy’s grazing rights and ordered that he reduce his heard from 900 to only 150 heads of cattle using the endangered species act and the desert tortoise as the reason, and without compensation. He needed the property right to graze cattle on federal land to make his ranch economically viable. The value of his ranch plummeted. As Dana Loesch put it, this was a land grab, plain and simple. And it is not over. Mr. Bundy still has no grazing rights, no way to sell his property, and no livelihood without violating BLM restrictions and owes the government $1.1 million in fines and fees. At least he got his cows back for the time being.
Bundy probably decided to let his cattle graze on BLM, without grazing permits, as he had no options. Fines were accruing at $200 dollars a day per head. The government only needed to wait until the fines and fees accrued to $1.1 million, a number that exceeded the value of his cattle and the value of the land to seize his property.
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This strategy is not new. It was proven successful throughout western American history by cattle barons. They used gun hands to cut off natural resources like the water feeding small ranches, destroying the economic viability of the ranch in order to later buy it on the cheap and expand their empire. Their gun hands wore masks and rode horses in the dark to destroy fences and irrigation ditches. Today’s unwitting gun hands show up with police dogs and pickup trucks, heavily armed with the letters “BLM” stamped on their chest.
When the United States was formed, the eastern states owned all the land within their borders and ceded small amounts of land to the federal government. Western land was first acquired by the United States via the Louisiana Purchase and some other acquisition with Spain (I can’t remember the name.) The United States then ceded a small percentage of the lands to the states within their borders, reserving ownership of 84 percent of the land within Nevada’s borders. Some say this is unconstitutional, I am not one of them. This is not a state’s rights issue.
If Bundy lived with a scenic river running through his backyard, and Senator Newlands decided to take and divert all his water rights to (let’s say) Fallon, Nevada, destroying a cutthroat spawn in order to grow cantelope melons in the desert and reducing the Truckee River to a mere trickle, the government would have had to pay him for his water rights and the decrease in his property value.
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Every article I read is short on solutions. Here is one. Whether the law recognizes it or not, this is an unconstitutional taking. In lawyer speak, it is called “eminent domain” or “inverse condemnation.” The government must meet constitutional requirements to confiscate your property, including paying you for it. But, Bundy cannot seek this remedy. His ownership of grazing rights is not recognized by law. Congress should remedy this quickly. Treat grazing rights like water rights. The government should not be able to destroy the value of your land and extinguish your livelihood, leaving you with nothing. Making them choose between their fat government pensions and their belief in saving the desert tortoise is the only way to slow their roll.
The Brietbart column concluded it is a stretch that Harry Reid is or was involved. I tend to agree. It is certainly possible that this is all about environmental fanaticism. Maybe the BLM is being headed by people whose priority is the desert tortoise, the sage grouse, the moapa dace, the spotted owl, or some obscure salamander somewhere out west. Maybe this is the motivation behind reducing the Bunkerville allotment. That fanaticism even explains the hypocrisy of allowing the feral horse, a grazer that presents the same environmental hazard as a cow, to promulgate while demonizing the cow that is also a grazer.
But there is evidence suggesting wrongdoing. And it should not be simply dismissed. It’s no secret that Harvey Whittemore and Harry Reid are friends. It is no secret that in 1998, Reid and then Senator Ensign co-sponsored legislation that reclassified federal lands removing restrictions on the sale of some federal lands. It is no secret that Whittemore later acquired approximately 10,000 acres of those lands via a land swap in order to build the Coyote Springs Resort only 53 miles from the Bundy family ranch. It is no secret that local ranchers opposed this. Whittimore was later required to pay for those lands. It is also no secret that the development was opposed by the EPA because of none other than that pesky desert tortoise. In the end, the EPA, lawsuits, and other obstacles disappeared; and Mr. Whittemore was allowed to proceed with his resort. An estimated 30 billion dollar resort that originally was to span 43,000 acres, including 160,000 homes and 12 golf courses that most certainly would have done more damage to the habitat of the desert tortoise than 750 cows.
Reid and his oldest son, Rory, are both involved in an effort by a Chinese energy giant, ENN Energy Group, to build a $5 billion solar farm and panel manufacturing plant in the southern Nevada desert. O.K. I agree it’s a bit of a stretch to believe they want the Bunkerville allotment for this purpose, especially when Senator Reid can simply re classify federal land. But this is, after all, Nevada; and you know what they say about Nevada: “she is an old whore.”
What isn’t a stretch is that Harry Reid knows midterms are approaching and made a phone call to Neil Kornze and postponed the seizure until after the election.
Mr. Bergeron is a defense attorney in Reno.
The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by the owners of this website.