Guest Essayist: Andrew Langer

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The thirty-sixth state admitted to the Union was Nevada, having ratified the U.S. Constitution October 31, 1864, and currently uses the Nevada State Constitution adopted in 1864.

The relationship between Nevada and the federal government is as much a matter of the history of how Nevada became a state as it is the conditions under which it was granted statehood.  Like many western states, states whose territories were carved out of the lands gained by the United States as a result of the Treaty of Guadalupe Hidalgo of 1848.

Until that point, states entering the union retained title to “unappropriated public lands” within their boundaries.  But states entering the Union after 1848, by and large, ceded all title to these unappropriated public lands—i.e., lands that were neither privately owned, nor were they dedicated to some official public purpose—to the federal government as an incident of their becoming a state.  As a result, these states, which were also much, much larger than their eastern counterparts, came into the Union with massive amounts of federal land within their midst.

There were a number of reasons for this.  Keeping in mind that Nevada was admitted to the Union during the height of the civil war—the state was also rushed to admission because Republicans wanted to ensure President Abraham Lincoln’s re-election in 1864 (it turned out that Lincoln won handily, but the party politicians at the time wanted to make certain of it).

But the transfer of title of unappropriated public lands from the territories to the federal government upon statehood had a lesser-known (and from an academic perspective, really not understood at the time) benefit.

In his book, The Mystery of Capital, the Peruvian economist and political scientist Hernando DeSoto talks about the importance of “clearing title” to real property (i.e., land) in order to facilitate its purchase and development.  The concept is simple and straightforward:  people will invest in real property only when they have certainty that they have clear legal title to that land, and that this title will be protected under the rule of law.

In order to make certain that these newly-born states would be settled, it was essential that prospective residents be assured that the land they were settling would actually be theirs-that nobody else would lay claim to them down the road.

But part and parcel of this conversion of state territorial lands to federal ownership was a secondary agreement—that the federal government would “dispose” of these lands (with the exception of lands that would be used for governmental or educational purposes).  In Section 10 of the Enabling Act for Nevada, passed by Congress in 1864, Congress agreed that the state would be paid a percentage of the sale of all public lands, “which shall be sold.”  It was an agreement which essentially admits that Congress didn’t envision, at the time, that the federal government wouldn’t retain these lands in perpetuity.

It’s the same agreement, incidentally, that the Federal Government agreed to in essentially every enabling act after the Treaty of Guadalupe Hidalgo was ratified… and yet these states still contain tremendous federal land ownership.

The reason for this is straightforward.  For many years, these lands were remote, inaccessible, and in many cases inhospitable.  While much of it is used for ranching and timber production, it was many years before some of the more desolate public lands were seen as possibilities for mineral, petrochemical or recreational usage.  So there was no demand for many of these lands.

But as that demand began to grow, push-back against this longstanding contractual agreement to dispose of these lands began as well—especially from recreation enthusiasts, who saw no distinction between National Park lands (clearly managed for recreational use) and lands managed by the U.S. Forest Service (which, as an agency under the U.S. Department of Agriculture are managed for timber production), the Bureau of Land Management (which manages lands used by ranchers) and a host of other agencies which lease lands out for private use.

It was out of this attitude that the Federal Land Policy and Management Act of 1976 was created.  FLPMA, as it is better known, “flips” the duty to dispose on its head—and for nearly the last half-century there is instead a “duty to retain” these public lands, but the onus on localities, states, or private parties to make a heavy case for why a parcel of property ought to be disposed.

As a result, states like Nevada have huge parcels of federal land in their midst—more than 4/5 of Nevada is federally-owned.  This has huge impacts on the ability of the state government and local governments to effectively exercise their authorities.

Take Nye County, NV—Nye is the third-largest county in the United States, the size of Vermont and New Hampshire combined.  It is more than 90% federally-owned.  When the county makes land-use decisions, in many case, these decisions have to be reviewed by a host of federal agencies, by personnel thousands of miles away working within enormous bureaucracies.  At many points, there has been conflict—for instance, in the mid-1990s, a road was washed out connecting two Nye towns.  Because the road crossed US Forest Service lands, the county had to work with the USFS to try and get the road reopened since, absent the road, Nye residents would have to go, literally, hundreds of miles out of the way to get from City A to City B.

The County Commissioners felt that the USFS was dragging its feet and, in fact, the forest service was reluctant to reopen the road.  It came to a head when a frustrated county commissioner got on a county-owned bulldozer and opened up the closed road himself.

The federal government sued Nye County, and despite state law saying that the counties had some powers with regards to utilization of these lands, when the Nevada Attorney General refused to defend that law, the federal government won that lawsuit—leaving counties like Nye powerless in the face of massive government retention of public lands.

We continue to see flare-ups in the tension between local landowners and federal land management authorities.  Despite the fact that obligations exist since states like Nevada became members of the Union, existing federal law will make it hard for land management and ownership to devolve to the states.  Which means that state and local governments will still have to contend with the federal government as a massive partner in non-federal decision-making.

Andrew Langer is President of the Institute for Liberty and host of the Andrew Langer Show on WBAL NewsRadio 1090 in Baltimore.

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1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Great essay on several counts:

    1. I would have never guess that Nevada became a State in 1864. I would guess early 1900s. This is one of the things I love about the essays – always learning something new.

    2. Having just returned from Zion and Bryce National parks and recognizing that Utah has several other very large National Parks I was very quickly struck by the author’s elucidation about how these western states came into being. The National Parks are glorious works of GOD that need to be preserved. But I can also understand the frustration of locals who are not allowed to travel from one city to another across forest lands on preexisting roads. The same lands that large corporations can and will cross for the purpose of harvesting trees, which I support. I don’t agree with giving corporations access and not individuals.

    3. I literally laughed out loud when reading about the county commissioner grabbing a bulldozer and opening the road. Even more poignant is I did something similar a couple of weeks ago. A neighbor on an adjoining road installed a second culvert to access the back of his property. No problem. The problem was the culvert was damaged and had a dead Christmas tree stuck in the inlet. So much so that water had rise to the point of running down the side walk to drain causing water to back up 3/4 mile into our subdivision impacting dozens of homes. So I grabbed my trusting spade shovel and dug a 8 inch wide 1 foot wide trench to allow the water to escape. While digging the trench the owner hurled profanity at me and ultimately called the State police. Apparently the State police were too busy dealing with the 7 inches of rain in 8 hours to redress his complaint.

    Fast forward we contacted the State, being a State road who inspected the culvert. Found it damaged and too small. Reportedly they’ve sent the owner a letter instructing him he has one week to replace the culvert with one of the correct size or they will do it and bill him accordingly.

    While I do not advocate acting without restraint or respect for the law. I was willing in this case to save numerous homes from flooding and face prosecution if the State deemed my offense warranted such action. I was willing to “do the crime” for the public good while also “doing the time” out of respect for public law and order.” Fortunately, I did not time.

    PSD.

    Reply

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