by Steve Miller Electric Nevada
copyright © 1996, Electric Nevada
The law was bold, anarchic.
It reflected the maverick strain. Its rationale reached back 115 years to the date Nevada was battle-born. The public lands had never been intended to be held in perpetuity by the federal government, Nevada said. It had been brought into the Union on "unequal footing." Sovereign states were meant to control their own destinies -- but without land they could not do it.
"We're not just a bunch of wild-eyed cowboys out to lynch some federal officials," said [then-]Attorney General Richard Bryan. "We're serious people asking for a serious look at the unfair treatment the West is receiving." Said rebel Calvin Black, it was time to end "federal colonialism."
Nevada, 1979. The revolt was born. The shot heard 'round the West.
The words are from The Angry West, published in 1982 by then-Colorado-governor Richard Lamm (now a candidate for the Reform Party's presidential nomination) and writer Michael McCarthy. The law referred to was Nevada assembly bill 413, signed June 2, 1979 by then-Governor Bob List.
Still on the books today (chapter 321 of the Nevada Revised Statutes, sections .596 through .599), the law asserted the return to the state of 49 million acres of public domain land nowadays claimed by the federal government. It is virtually all the land within the state borders administered by the Bureau of Land Management.
The law had been a legal broadside aimed at the Carter Administration, which had been, in the words of Lamm and McCarthy, "a western nightmare" with regard to the public domain lands.
For example, John W. Marvel recalls 1975, when "I was president of the cattle association when they [Carter's Department of Interior] came out with what they called the 'Nevada Plan.'
"If they had ever implemented that, it would have put every livestock owner that uses the public lands out of business," says Marvel, who now represents in the state assembly a huge central-Nevada district covering Humboldt and Pershing counties, plus parts of Elko, Eureka and Lander counties.
The goal of the '79 law, says Dana Bennett, chief staffer for the state senate's public lands committee, was to get the federal government into court and resolve, for once and for all, the constitutionality of the continued federal grasp on all but 13 percent of the land within Nevada's borders. However, she recounts, "the judge sidestepped the particular issue," at that time, and it remains unresolved today.
As part two of this series detailed last week, that particular Constitutional controversy goes back to the very founding of the Silver State.
The story that remains unknown to most modern Nevadans, however, is how, during the 132 years since Nevada became a state, financial interests based in the nation's Northeast successfully fought to keep most Nevada lands in an essentially colonial status -- that is, 'off the market,' and unavailable to settlement or ownership by homesteaders, ranchers or farmers. Those interests sought, and largely achieved, a situation where they, rather than the people who chose to move to Nevada, controlled the state's destiny. It was a situation new in the history of America, and it is our subject.
As U.S. Interior Department economist Robert H. Nelson noted in the early 1980s, as he analyzed the Sagebrush Rebellion and the privatization movement, "Federal ownership of vast areas of western land is an anomaly in the American system of private enterprise and decentralized governent authority."
The President's Commission on Privatization during the Reagan years said much the same: "The public lands constitute about one-third of the land area of the United States, a huge federal domain of ownership that is hard to reconcile with the reputation of this country as a citadel of reliance on markets and the private sector."
So how did such a situation -- so opposed to the intent of America's founding fathers -- come about? Thomas Jefferson, for example, had insisted that the federal government sell all its vast domain to private owners, and thereafter should "never after, in any case, revert to the United States."
In many ways it was the legacy of the Civil War.
First, before the bloody conflict, the South had invariably challenged the rising power of the industrial and financial centers of the Northeast. But now, with the South prostrate and devastated, not to really rise again for a 100 years, those Northeast financiers and their industrial compatriots essentially faced no competition in their bid to direct the economic business of the nation.
Secondly, the doctrine of states rights, one of the banners carried by the Confederacy, had taken it on the chin. If not entirely discredited, that view of a much more limited central government had -- in the wake of the many extra-constitutional measures taken by Lincoln during the years of emergency -- found itself much more subject to "interpretation."
Third, there was a great deal of sectional bitterness. Antagonism between the North and South, had of course grown strong in the years leading up to the Civil War. But sectional identifications and distrust had also become, to an important degree, part of the country's fabric -- a widely sanctioned lens through which to view national events and issues. 'Waving the bloody shirt' was standard political tactics for generations. And the West, in the eyes of the East, had not been exempt from blame.
"Washington never forgot that Nevada was rife with southerners --- about 30 percent of the total population," wrote Wayne Hage in Storm Over Rangelands. "Along with the southerners, Copperheads [southern-sympathizing Northerners] in unknown numbers owned extensive prior appropriation rights to gold and silver claims, to water, and to livestock grazing land."
Beside the Civil War legacy, there was a fourth important factor -- the rise of a small but strategically located new class of federal bureaucrats.
It was the General Land Office, the section of the Interior Department responsible for administering the Homestead Act, which quickly became a roadblock to settlement of the West. Its employees, it soon became apparent, had powerful financial and other incentives to stretch out as long as possible disposal of the public domain lands.
To begin with, Land Office employees were well-salaried and had the privileged position that went with their discretionary power over who would qualify for homesteads -- a situation which repeatedly led to major corruption scandals. The speedy privatization of public domain lands in the West, therefore, would necessarily mean the end of these preferred salaries and positions.
But there was more. A Land Office employee significantly increased his income each time he processed a homestead filing. For validating and processing claims, officials at each land office received fee and commission payments -- funds which could supplement their personal incomes up to a three-thousand dollar limit.
As University of Arizona professor Gary Libecap points out in Locking Up the Range: Federal Land Controls and Grazing, the very idea of conveying fee title to the vast chunks of range that had now, necessarily, become the ranching norm in the arid West, had become a direct personal threat to the Land Office employee's job security. On the other hand, should he continue to drag out the land settlements in 160-acre parcels, his fee income, agency budgets, and long term career were secure.
Thus, almost from the start, large numbers of United State Department of Interior employees found themselves recoiling instinctively from the idea of allowing Nevada and other western ranchers to receive title to the large expanses of range land where they had used the land beneficially.
That standard -- of beneficial use and prior appropriation -- had governed the settlement of most of the rest of the United States, and Congress had already, in 1866, recognized the ranchers' water rights on the lands in question. It had been widely expected that, soon after the Civil War, the West would follow the course that had the rest of the nation and become privately owned real estate.
But advice to Congress on western land issues was now coming from General Land Office personnel in Washington -- men who had "a dog in that fight."
If sectional distrust, bureaucratic self-interest, and a federal government with less respect for state sovereignty were elements of potential trouble for the settlement of the West, the group with the largest incentive and ability to put all these factors together was resided in the financial centers of the East. Remember that the Civil War had largely arisen over the future of the West -- was it going to be slave or free? Would it be the culture and social values of the North or the South that was going to prevail?
Now that question had been entirely resolved, and financiers and investors of the triumphant Northeast looked out at the developing West and saw a vast, mostly undeveloped land, extremely rich in resources, and almost entirely dependent on eastern financial interests for development capital. A more lucrative investment climate interests could hardly have been imagined.
There was only one factor which could have upset this near-monopoly, notes Wayne Hage, and it would have been the expansion of private ownership of the West.
"The very richness and vastness of the West's resource base was such," wrote Hage in his 1989 book, "that if a sufficient portion of that resource wealth fell into hands not controlled by eastern interests, the West could industrialize and become an industrial and financial center in its own right."
So, eastern capitalists began a battle for control of the western range.
On the basis of an 1866 water law passed by Congress, informed opinion expected that whoever owned the western water rights would end up with title to the huge tracts of western land --- and all the timber, minerals, hydro power sites, etc. that entailed. eastern capitalists, therefore, began a battle for control of western water.
"The tremendous competition for control of the western ranges, characterized by the historically popularized range wars and overgrazing, was a competition for ownership of the land and its wealth of resources," wrote Hage.
"Livestock grazing was a means to that end. eastern and foreign capitalists moved vast herds of livestock into the West to assert their own claims."
But the early stockmen and farmers -- first on the land -- often already had legal control of the water and land by the doctrine of prior appropriation. To achieve the goal of gaining control of the land, the late-arriving Northeast capitalists had to first dispossess the early farmers and stockmen.
"Large bands of sheep were often used to accomplish the objective of 'eating out' the small stock grazer or homesteader," wrote Hage.
"A common ploy was to graze bands of sheep near the private land or waters of the small settlers until the small settler was forced to abandon his land and water claims... Sometimes cattle herds were used in the same way."
On the floor of the U.S. House, one William McAdoo, congressman from New Jersey happened to report the confided desire of someone he described as the largest capitalist in New York City.
That capitalist had agreed with McAdoo: "the United States ought, under the right of eminent domain, if no other way ... condemn the right of way ... to the moving streams of water," obliterating the prior appropriation water rights of the original settlers of the West.
In the late 1880s, the desire of eastern capitalists to erase the prior appropriation rights in the West was demonstrated for all to see by their American Cattle Trust, modeled largely on the Standard Oil Trust and touted to prospective members as a way to bring them all the benefits of monopoly market position.
"As soon as the eastern capitalists got a substantially concentrated hold on the western cattle industry," wrote Hage, "they set about to abolish the water rights and range rights of their own Trust members.
"It was no error that the trustees allocated herds without regard for water rights or range rights: trustee orders to local managers preserved in the Trust's letterbooks are clear and calculated, as are the complaints of local managers against the abuses. The eastern capitalists of the Trust knew what they were doing.
"However, the plan did not work. Soon every level of management was disagreeing with every other level, and the managers with the capitalists. The eastern trustees argued with the western trustees."
"The squabbling Trust managers couldn't compete with non-Trust ranches that remembered whose water rights were whose and what range rights meant," wrote Hage. By 1889 the Trust was bankrupt, and by 1890, liquidated.
Millions of 19th century dollars had been sacrificed in pursuit of control of the western range by economic means --- means, the eastern capitalists recognized, which had not worked.
Yet only by invalidating the emerging water and range rights of the existing individual ranchers could the goal of evenutual control and exploitation of the western resources remain a possibility.
So, says Hage, the Northeastern capitalists looked around for a new idea.
What was working, they saw, was "the political." The Union Pacific and Northern Pacific railroads had achieved gigantic land grants during and after the Civil War, and then had convinced the government to exclude settlers from over 21 million acres of desirable land until the railroads were ready to select. Twenty years after the Civil War, the policy --- and the exclusion --- was still in place.
Similarly, Jay Cooke, of the Northern Pacific Railroad, had successfully monopolized a major tourist attraction by lobbying Congress to create Yellowstone National Park.
"The rhetoric [had been] all nature appreciation and public enjoyment," wrote Hage. "But the real purpose was monopoly for the Northern Pacific."
Congress had been compliant. After hearing testimony assuring members that the proposed 40-square mile park was worthless for settlement, mining or timber, Congress gave the Northern Pacific exclusive concession rights to serve Yellowstone.
To the eastern capitalists, what had the best chance of reserving the western public domain lands from private settlement was clear: the federal government, as a catspaw for eastern capitalists.
"If the resources of the West could be politically locked up in some kind of reserves until the East found a practical way to exploit them the objective of dominating the western states could be realized," wrote Hage. "And that required the end of privatization and the extinction of water rights and range rights."
Next: The Coming of the Forest Reserves
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