DuBois Column - NM Stockman

My column this month asks some preliminary questions about the “Cattle Battle” in Nevada.

As I finish this column the feds have backed off the Bundy Ranch and released the cattle back to the Bundy Family.  I was pleased when this became a national story because finally the light was being shown on federal land management and TV pundits were actually discussing such things as grazing permits, grazing fees and BLM’s approach to law enforcement.  However, many of the folks commenting on the situation were very confused about public lands law.  This is my attempt to clarify some of the issues and to ask questions that I believe need answers.

Who “owns” these lands?

This will not make some of my friends happy, but the feds do.  Why would a private property loving, limited government advocating, animal like myself say this? Because whether I like it or not it’s in our State Constitution.

The New Mexico Constitution was adopted by a Constitutional Convention on November 21, 1910 and ratified by a vote of the people on January 21, 1911. Article XXI, Sec. 2 of that Constitution states:

The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof…

Nevada and other western states have similar language. Before you start throwing rocks at our forefathers, please remember these lands were to be disposed of, just like they had been in states east of the Mississippi River.  No one in 1911 dreamed that sixty-five years later the Congress would change national policy from disposal to retention and that over a hundred years later the feds would still control 30 percent of the state’s land area.

BLM’s law dogs

Is the BLM in compliance with the intent of Congress by relying on federal employees to conduct these types of law enforcement actions?

Let’s turn to FLPMA, Section 303(c)(1):

When the Secretary determines that assistance is necessary in enforcing Federal laws and regulations relating to the public lands or their resources he shall offer a contract to appropriate local officials having law enforcement authority within their respective jurisdictions with the view of achieving maximum feasible reliance upon local law enforcement officials in enforcing such laws and regulations. (Emphasis mine)

The “shall” and the “maximum feasible reliance” indicates it was Congressional intent the BLM use local law enforcement.

Ah, but some will say this was a federal court order concerning federal lands, so surely it takes federal officials to carry it out.  Nope.  Again turning to Section 303(c)(1) of FLPMA, we find when local officials enter into a contract to “enforce federal laws and regulations” they are specifically authorized to do just that and much more.

In the performance of their duties under such contracts such officials and their agents are authorized to carry firearms; execute and serve any warrant or other process issued by a court or officer of competent jurisdiction; make arrests without warrant or process for a misdemeanor he has reasonable grounds to believe is being committed in his presence or view, or for a felony if he has reasonable grounds to believe that the person to be arrested has committed or is committing such felony; search without warrant or process any person, place, or conveyance according to any Federal law or rule of law; and seize without warrant or process any evidentiary item as provided by Federal law.

Section 303 of FLPMA is the “Enforcement Authority” part of the statute and the first option authorized by Congress is the contract with local law enforcement, which again is to be relied upon to the “maximum feasible” extent. 

Livestock trespass law

Speaking of law enforcement, why don’t the federal agencies utilize state trespass laws like other landowners?  The New Mexico Livestock Board is authorized by statute to impound trespass livestock, plus their inspectors are certified law enforcement officers.  Nevada has similar laws.

All this means federal land management agencies can contract with the County Sheriff to provide for “public safety” and they can contract with the New Mexico Livestock Board to impound and remove any trespassing livestock.  No need for 200 federal officers, helicopters and attack dogs.  The feds use state brand laws, they comply with state water, hunting and transportation law.  So why not state livestock trespass law?

Additional questions on the Cattle Battle in Nevada

Why did the Sheriff conduct "behind the scenes" negotiations instead of using his authority to prevent this overreach by the feds from ever happening?

Why is the jurisdiction issue never brought up?  Which entity, the feds or the state, exercises exclusive legislative jurisdiction over the BLM lands in question here?  (See Art. I, § 8, Cl 17 of the U.S. Constitution which limits federal jurisdiction).

Just where does the BLM get the authority to have official LEOs?  In a recent GAO report the BLM cites an Executive Order for their authority, but they don't provide the EO number so the text can be reviewed.

Several articles referred to the FBI being on the scene.  Who requested the FBI involvement and in fact how many total federal employees were involved and from what agencies?

Why did the feds declare a “no-fly zone” over the area?  Was it really to protect federal employees or was it to keep media choppers out of the air?

Prior to the decision to stand down, what intelligence was gathered by the feds, by whom was it obtained, how was it gathered and what role did it play in the decision to stand down?

We have seen the pictures showing BLM weapons, helicopters and attack dogs.  Just how large is the BLM arsenal with respect to weapons, ammo, dogs, vehicles, drones and other devices and supplies?  The same question should be asked of the Forest Service, Park Service, Fish & Wildlife Service and the EPA.

Seems like the more questions I ask the more come to mind.  Let’s hope we get some answers and let’s watch and see what the fed’s next move will be.  I can’t help but believe they want to put Cliven Bundy in jail just like they did Kit Laney.

Till next time, be a nuisance to the devil and don’t forget to check that cinch.

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner (www.thewesterner.blogspot.com) and is the founder of The DuBois Rodeo Scholarship (http://www.nmsu.edu/~duboisrodeo/).

This column originally appeared in the May edition of the New Mexico Stockman.