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 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 paymnents
-- 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. 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 On
the other hand, should he continue to drag out the land
settlements in 160-acre 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
week: The Coming of the Forest Reserves