Carson sideshow leads to serious answers on public land

That settles it, then.

If there was anyone left who embraced any of the myriad crackpot legal theories that claim the federal government cannot or does not own the vast swaths of public land in Nevada and the west, they should have been put to rest by the debate over Assembly Bill 408.

That bill — which asserts state ownership and control over federal law — saw Cliven Bundy and his followers descend upon Carson City this week, claiming court rulings and even God himself stood for the proposition that Nevada’s public lands really belong to the state. But the circus sideshow, the latest in a long string of impotent, Sagebrush Rebellion gestures attempted over the years, never really got off the ground.

Thats because of a letter sent to Assembly Speaker John Hambrick by Brenda Erdoes, the Legislature’s chief attorney. In 10 well-reasoned, heavily sourced pages, Erdoes demolishes each argument behind Assembly Bill 408 and concludes the bill is unconstitutional, and the federal government’s claims on Nevada’s lands are legitimate.

The feds can’t own land, except for certain specified uses? Nope: The U.S. Constitution’s Property Clause says 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.” Subsequent court rulings have held that this power is without limits, Erdoes noted.

The feds never properly acquired title to Nevada public lands? Erdoes notes that this argument has been repeatedly rejected by courts, and that the U.S. government doesn’t necessarily have to purchase land from a state to own it. For example, it can reserve control of land when a state is admitted to the Union.

And that’s exactly what happened in Nevada: The ordinance section of our state Constitution contains a line that says Nevada’s residents “… forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.”

Critics note that section was repealed by a vote of the people back in 1996, 56 percent to 44 percent. But a look at the history of that debate shows there were questions over its constitutionality, questions that were resolved by including language that said it would not become effective until the Congress agreed, or until a legal determination that such agreement was unnecessary. In the nearly 20 years since that vote happened, Congress has not agreed.

The Equal Footing Doctrine, which says states must be admitted to the union on the same basis as the original 13? That doesn’t work, either, Erdoes wrote, noting that a 9th Circuit case said in 1997 that the doctrine “does not operate … to give Nevada title to the public lands within its boundaries.”

And if all that doesn’t convince you, don’t forget about the Supremacy Clause, which says the U.S. Constitution and laws made thereunder is the supreme law of the United States.

The upshot? “Based upon the holdings in these cases, it appears well-settled that the United States has been judicially declared to be the owner of the unappropriated public lands in this state, and, as such, has the authority to manage and control those public lands,” Erdoes writes. “Furthermore, it also appears well-settled that Nevada’s current statutory claim of ownership over those public lands set forth in [state law] is unconstitutional and fails as a matter of law.”

The bill’s author, Republican Assemblywoman Michele Fiore of Las Vegas, said she “absolutely, 100 percent disagrees” with Erodes. Why? Well, because of … reasons. (That’s a paraphrase, of course, but not by much. A Washington state representative, who’s also an attorney, called into the hearing with citations he said supported Nevada’s claims, but they were not nearly as persuasive as Erdoes’ letter.)

We should probably thank Fiore for helping to settle the matter. By requesting a manifestly unconstitutional and ultimately doomed bill, she’s helped us see the truth about the shaky underpinnings of the modern Sagebrush Rebellion.

Steve Sebelius is a Review-Journal political columnist who blogs at SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.