Guest Opinion: BLM prevented from doing its lawful work in Nevada standoff


April 23, 2014 

In Rocky Barker's article "Armed Idahoans Joined Standoff," he compares some of this activity to events in the 1990s. "Those who cannot remember the past are condemned to repeat it" seems appropriate. The BLM will always be "condemned to repeat it." This is not because the BLM doesn't know or understand its past; it is because the BLM opponents do not know, or care to know, the past. There is nothing new about the BLM enforcing the public land laws!

The BLM has been conducting lawful cattle trespass activities since the passage of the Taylor Grazing Act of 1934. Prior to that act, grazing on the public domain lands was unregulated and free. But overgrazing, conflicts over who could graze where, and conflicts between sheep operators and cattle operators all led up to a need for Congress to act. Pursuant to the property clause of the Constitution, it is the Congress that has the authority to make all needful rules and regulations in regards to the property of the United States. The Taylor Grazing Act was just one such needful rule. It provided authority for the General Land Office to require grazing permits and to collect a fee for such permit. It created the Grazing Service to organize and regulate grazing and carry out conservation responsibilities on the public domain lands.

The Taylor Grazing Act was first challenged by a grazing trespasser in 1936. A special agent of the GLO swore out an affidavit and complaint before a U.S. commissioner and an arrest warrant was issued. The special agent obtained the services of a deputy U.S. marshal to serve the warrant and the trespasser got some jail time. Prior to having to appear before a federal grand jury in Portland, the trespasser disbanded his livestock and left the state. It appears that it just isn't that simple anymore!

The BLM was created in 1946 by a merger of the GLO with the Grazing Service. BLM's authority and responsibilities have been increased over the years by other needful rules enacted by Congress, such as the Federal Land Policy and Management Act of 1976. So in the Nevada cattle case, the BLM was carrying out its lawful responsibility to require a grazing permit and to collect revenue owed to the United States pursuant to the Taylor Grazing Act and the FLPMA.

It should be pointed out that BLM law enforcement rangers and special agents are seldom involved in cattle trespass actions. It appears that their purposes in this case were to provide security and prevent interference to the BLM livestock wranglers involved in the cattle roundup. Since the groups that were present to confront the BLM were becoming increasingly hostile, the BLM called off the roundup to prevent any outbreak of violence. The end result was that BLM was forced to abdicate its lawful responsibilities.

The Nevada rancher asserts that the state owns the land rather than the federal government. However, as recently as 1995, this was shown to not be the situation in the case United States v. Nye County, Nevada. In fact, there is a long history of case law that has sustained the federal government ownership of the public lands and the authority of the government to enforce the public land laws. If the rancher and others really believe in his cause, the correct (and civil) place to make this argument is in the courts, and not by advocating hostility and violence.

McLane, of Boise, is author of the book "Seldom Was Heard an Encouraging Word, A History of Bureau of Land Management Law Enforcement."

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