Law and the Bundy's

[Alyosha]

Please, Newpublius and Peter1469 help me with this argument (that includes pointing out where I am wrong)

The Northwest Ordinance (http://avalon.law.yale.edu/18th_century/nworder.asp) was passed in 1787, and created the legal concept of "equal footing", ie any new state would have the same rights of the original thirteen. This was backed up by the Supreme Court in Pollard versus Hagan (https://supreme.justia.com/cases/federal/us/44/212/case.html) regarding the new state of Alabama where the court stated that,


The stipulation contained in the 6th section of the act of Congress, passed on the 2d of March, 1819, for the admission of the State of Alabama into the union, viz.:"that all navigable waters within the said State shall forever remain public highways, free to the citizens of said State, and of the United States, without any tax, duty, impost, or toll therefor imposed by said State,"conveys no more power over the navigable waters of Alabama to the Government of the United States than it possesses over the navigable waters of other States under the provisions of the Constitution.And it leaves as much right in the State of Alabama over them as the original States possess over navigable waters within their respective limits.The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively, and the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States.The United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama, or any of the new States, were formed, except for temporary purposes, and to execute the trusts created by the acts of the Virginia and Georgia legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty of the 30th April, 1803, with the French Republic ceding Louisiana.

...

Alabama is therefore entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it before she ceded it to the United States. To maintain any other doctrine, is to deny that Alabama has been admitted into the union on an equal footing with the original states, the constitution, laws, and compact, to the contrary notwithstanding ... and no compact that might be made between her and the United States could diminish or enlarge these rights.

Once you are a state, the federal government gives you those same rights of the original thirteen which were protected by the Enclave Clause of Article 1, Section 8: ...the Congress shall have the power to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dock-yards and other needful buildings.

There is a tradition of the government overstepping its boundaries, so we have accepted that this is legal in the same way that the guards accepted Obiwan's "you don't need to see his identification", but that doesn't mean that it is legal.

[Spectre]

I know nothing about the law, but one thing even cautiously supportive conservative commentators are pointing out is that technically Bundy HAS broken the law, and that there are thousands of ranchers who regularly pay their grazing fees and peacefully graze their herds on public lands.

And one thing I don't know is: if Bundy wanted to buy the land in question, COULD he?

[Alyosha]

I know nothing about the law, but one thing even cautiously supportive conservative commentators are pointing out is that technically Bundy HAS broken the law, and that there are thousands of ranchers who regularly pay their grazing fees and peacefully graze their herds on public lands.

And one thing I don't know is: if Bundy wanted to buy the land in question, COULD he?

Broken what law? Only Congress has the power to tax. I'll concede that the BLM has the right to levy a tax when someone shows me the Congressional authority (also the BLM's congressional authority).

[Newpublius]

the enclave clause, that empowers the Federal government to exercise jurisdiction over land it has purchased, similar to the District of Columbia and the territories clause, it's still a little different because of the nature of the ownership. Equal Footing Doctrine is only a tangent to this, it says what you say it says, a state is a state is a state, there are no second class states. Another case had Congress admitting a state ( Nebraska or Oklahmoa I think) with the stipulation that the capital be in a certain place and the Equal Footing Doctrine ensured that the state wasn't bound by that stipulation.

in the case you're pointing to, the restrictive covenant was no more restrictive than that which the Constitution itself would've imposed on Alabama, or which the national government would've been constitutionally within its right to regulate.....

the bundy's dispute is very similar to 19th century free rangers. This guy was grazing his cattle on federal land and paying the fee, he stopped paying because the BLM changed the terms.

This doesn't implicate the Equal Footing Doctrine, this isn't something the Federal government can do in particular to Nevada that they wouldn't be able to do in Kansas.

Bundy is claiming some kind of ancestral right to the land which flies in the face of paying for the right to graze in 1993 along with some kind of states rights claim which I don't fully understand. Even if his grazing riguts existed before Nevada was a state, who cares, they then existed under the Territories Clause, Nevada becoming a state just reverts the land to control under the enclave clause, either way the Federal government owns the land unless he can get title to it in an adverse possession proceeding ( which I don't think you can do to a government entity)

[Newpublius]

Broken what law? Only Congress has the power to tax. I'll concede that the BLM has the right to levy a tax when someone shows me the Congressional authority (also the BLM's congressional authority).

Trespassing. It's not his land.....

[Alyosha]

Trespassing. It's not his land.....

Whose land is it?

[Newpublius]

Whose land is it?

The land belongs to the Federal government.

[Alyosha]

the enclave clause, that empowers the Federal government to exercise jurisdiction over land it has purchased, similar to the District of Columbia and the territories clause, it's still a little different because of the nature of the ownership. Equal Footing Doctrine is only a tangent to this, it says what you say it says, a state is a state is a state, there are no second class states. Another case had Congress admitting a state ( Nebraska or Oklahmoa I think) with the stipulation that the capital be in a certain place and the Equal Footing Doctrine ensured that the state wasn't bound by that stipulation.

in the case you're pointing to, the restrictive covenant was no more restrictive than that which the Constitution itself would've imposed on Alabama, or which the national government would've been constitutionally within its right to regulate.....

the bundy's dispute is very similar to 19th century free rangers. This guy was grazing his cattle on federal land and paying the fee, he stopped paying because the BLM changed the terms.

This doesn't implicate the Equal Footing Doctrine, this isn't something the Federal government can do in particular to Nevada that they wouldn't be able to do in Kansas.

Bundy is claiming some kind of ancestral right to the land which flies in the face of paying for the right to graze in 1993 along with some kind of states rights claim which I don't fully understand. Even if his grazing riguts existed before Nevada was a state, who cares, they then existed under the Territories Clause, Nevada becoming a state just reverts the land to control under the enclave clause, either way the Federal government owns the land unless he can get title to it in an adverse possession proceeding ( which I don't think you can do to a government entity)

Hey, thanks for weighing in, this is the type of discussion I wanted.

I believe that the Enclave Clause was written specific to land used for military purpose and buildings (to house government employees). That was how it was used for the creation of Washington DC and our earliest "forts".

As seen in Alabama the land reverted. Nevada got lost during the shuffle of the Civil War, but it's own legislature resolved this and I think it makes a strong case.

http://law.justia.com/codes/nevada/2010/title26/chapter321/nrs321-596.html

[Ravi]

The land belongs to the Federal government.
More particularly the land is part of the public domain, held in trust by the Federal government for the people.

[Alyosha]

The land belongs to the Federal government.

It does? For what Constitutional purpose?

[Alyosha]

More particularly the land is part of the public domain, held in trust by the Federal government for the people.

Ravi, are you Peter or Newpublius? No. Why don't you find some religion major who will counter the scientists from Princeton and Washington state while I have a decent discussion with a worthy adversary?

[Matty]

I know nothing about the law, but one thing even cautiously supportive conservative commentators are pointing out is that technically Bundy HAS broken the law, and that there are thousands of ranchers who regularly pay their grazing fees and peacefully graze their herds on public lands.

And one thing I don't know is: if Bundy wanted to buy the land in question, COULD he?


The government consciously breaks the law every day. Why can't Bundy break the law?

[Alyosha]

Newpublius

Again, thanks for participating...do you feel the federal judiciary is the entity to decide what the federal government owns, and if so, why?

[Ravi]

The government consciously breaks the law every day. Why can't Bundy break the law?Good point, Willow. There's nothing like personal responsibility, eh?

[Newpublius]

It does? For what Constitutional purpose?

In this instance, The US acquired it by treaty, Alyosha, and the Property Clause permits the federal government to own land and for the federal government to regulate it accordingly. The basic fact pattern has already been ruled upon in Kleppe v New Mexico where the federal government stopped grazing because Congress was trying to protect some other endangered species. Nobody suggests that the federal land ownership is unconstitutional, ab initio.

even if we take the most narrow view of federal property ownership, ie that they have a proprietor's interest and can't exercise a federal police power, the end result only changes in that a Nevada sheriff would be enforcing the Federal government's ownership interest.

and finally even if we went with some kind of unconstitutional land ownership theory which would compel the federal government to dispossess itself of the property, that wouldn't revert to free grazing rights for Bundy, the government would sell it, the people of the US would get the proceeds and the new private owner, which could be Bundy, or more likely the State of Nevada, could then charge for grazing.

[Alyosha]

Good point, Willow. There's nothing like personal responsibility, eh?

^This type of one liner discussion is why I didn't invite you to this thread. I wish to have real legal commentary where we discuss the Constitution and caselaw as we see it from a philosophical and practice area standpoint.

Being unable to prevent your usual snarky bullshit is why I rarely post real threads as Chris does.

Oh well, live and learn. Carry on with the stupid. I'm sure there's a home economic major out here that has some commentary you can include.

[Alyosha]

In this instance, The US acquired it by treaty, Alyosha, and the Property Clause permits the federal government to own land and for the federal government to regulate it accordingly. The basic fact pattern has already been ruled upon in Kleppe v New Mexico where the federal government stopped grazing because Congress was trying to protect some other endangered species. Nobody suggests that the federal land ownership is unconstitutional, ab initio.

I've yet to suggest that federal land ownership is unconstitutional. It is within limited guidelines.

So my question to you is regarding Nevada's 2010 Revised Code, wherein Nevada makes the legal case for ownership of lands the federal government states that it owns, http://law.justia.com/codes/nevada/2010/title26/chapter321/nrs321-596.html (see below)


2010 Nevada Code
TITLE 26 PUBLIC LANDS
Chapter 321 Administration, Control and Transfer of State Lands
NRS 321.596 Legislative findings.

NRS 321.596 Legislative findings. The Legislature finds that:1. The State of Nevada has a strong moral claim upon the public land retained by the Federal Government within Nevada's borders because:(a) On October 31, 1864, the Territory of Nevada was admitted to statehood on the condition that it forever disclaim all right and title to unappropriated public land within its boundaries;(b) From 1850 to 1894, newly admitted states received 2 sections of each township for the benefit of common schools, which in Nevada amounted to 3.9 million acres;(c) In 1880 Nevada agreed to exchange its 3.9-million-acre school grant for 2 million acres of its own selection from public land in Nevada held by the Federal Government;(d) At the time the exchange was deemed necessary because of an immediate need for public school revenues and because the majority of the original federal land grant for common schools remained unsurveyed and unsold;(e) Unlike certain other states, such as New Mexico, Nevada received no land grants from the Federal Government when Nevada was a territory;(f) Nevada received no land grants for insane asylums, schools of mines, schools for the blind and deaf and dumb, normal schools, miners' hospitals or a governor's residence as did states such as New Mexico; and(g) Nevada thus received the least amount of land, 2,572,478 acres, and the smallest percentage of its total area, 3.9 percent, of the land grant states in the Far West admitted after 1864, while states of comparable location and soil, namely Arizona, New Mexico and Utah, received approximately 11 percent of their total area in federal land grants.

What is your argument against this?


EDIT: stupid copy tool lumps it together, you can see the whole piece at the link. Thanks for reading.

[Newpublius]

@Newpublius (http://thepoliticalforums.com/member.php?u=685)

Again, thanks for participating...do you feel the federal judiciary is the entity to decide what the federal government owns, and if so, why?

Well, the only alternative would be to go to state court. I do real estate in NJ, if a real estate contract or dispute arises, it's almost invariably a state matter. Land and who owns it is typically a state matter, but the Constitution in Art I does allow Congress to create such inferior courts as it deems necessary and Congress has done so. And this is why they can make Bankruptcy, Admiralty, Court of a Federal Claims.

[Alyosha]

Well, the only alternative would be to go to state court. I do real estate in NJ, if a real estate contract or dispute arises, it's almost invariably a state matter. Land and who owns it is typically a state matter, but the Constitution in Art I does allow Congress to create such inferior courts as it deems necessary and Congress has done so. And this is why they can make Bankruptcy, Admiralty, Court of a Federal Claims.

I would think that since this is between Bundy and the BLM the state court would be the only "impartial" court, until such time as Nevada would deem to sue the state over the land.

In the case of Bankruptcy, the courts still adjudicate between individuals and creditors without having to deal with issues of tax since those things are not debts that can be relieved. There is no COI to adjudicate, IMO, bankruptcy.

[Ravi]

I would think that since this is between Bundy and the BLM the state court would be the only "impartial" court, until such time as Nevada would deem to sue the state over the land.

In the case of Bankruptcy, the courts still adjudicate between individuals and creditors without having to deal with issues of tax since those things are not debts that can be relieved. There is no COI to adjudicate, IMO, bankruptcy.
Nevada doesn't own the land. It also cannot decide federal policy.

[Alyosha]

Nevada doesn't own the land. It also cannot decide federal policy.

Did a Women's Studies major tell you that? :laugh:

[Newpublius]

I've yet to suggest that federal land ownership is unconstitutional. It is within limited guidelines.

When you ask, "For what constitutional purpose?" You're implying their isn't one and that the ownership is per unconstitutional.


What is your argument against this?

Let Nevada assert it's rights and perhaps they will prevail, but until Nevada does that, even if Nevada is 100% correct the US government is still in actual possession and can still act against third party interlopers. Bundy can't assert Nevada's cause of action, that's ridiculous -- the cloud over title isn't between Bundy and the US government.

[Matty]

Good point, Willow. There's nothing like personal responsibility, eh?
Did you answer the question? No you did not!

[Alyosha]

When you ask, "For what constitutional purpose?" You're implying their isn't one and that the ownership is per unconstitutional.


I'm implying that the government has none of the Constitutionally prescribed, lawful reasons for land ownership in this case, but that time without fervent opposition has given it possession.




Let Nevada assert it's rights and perhaps they will prevail, but until Nevada does that, even if Nevada is 100% correct the US government is still in actual possession and can still act against third party interlopers.

Agreed.



Bundy can't assert Nevada's cause of action, that's ridiculous -- the cloud over title isn't between Bundy and the US government.

I don't think that is what he is doing. I think he's challenging the fees. I think 20 years of non-collection of fees without lien, without judgment, with impunity also implies accepted use.

[Ravi]

Did you answer the question? No you did not!Two wrongs don't make a right. So, no.

[Newpublius]

I'm implying that the government has none of the Constitutionally prescribed, lawful reasons for land ownership in this case, but that time without fervent opposition has given it possession.

That's a bizarre argument though for many reasons. The first is that our system of property is derived from the common law system where the theory of land ownership is that all title can be traced to the sovereign and typically of course that means the state, but the federal government's land ownership predated the creation of the State of Nevada here, so we have a situation where Nevada was part of a territory and that territory was acquired by treaty, as a result of the War with Mexico. Then of course Nevada becomes a state and in essence Nevada's argument is such that it feels that it is constitutionally entitled to be the lawfully equitable successor and that since it wasn't, it was, in essence treated differently. Fine, let them bring their Equal Footing case, I don't really care because the ultimate question here is whether or not the Federal government can own land or not and fact is, they can, there is no constitutional restriction on it, Congress can own land and acquire it on a 'rational basis' -- the US government acquired and then sold quite a bit of land in the west no less, ie for railroads, etc. and even gave much land away, your doctrine simply places any title to any land, obviously this is a situation limited to places that were a territory at some point in time, in question. Not to mention, the initial cession of places like the Northwest Territory by states to the US government (the original states in theory claimed land pretty far to the west) showing quite clearly that the US government could simply hold land for the sake of holding land, ie. in trust and on behalf of the people of the United States would be too difficult to ignore.



I think he's challenging the fees. I think 20 years of non-collection of fees without lien, without judgment, with impunity also implies accepted use.

Well, then he needs to get an easement of sorts as a result of adverse possession and again I really don't think you can do that against a government** (on top of which even if this were a private owner, would grazing be considered 'continuous' with respect to the normal elements of adverse possession) . The issue of timing is an issue of statute of limitations/laches/stale claims of course. But the theory of trespass law is quite clear, a land owner can 'exclude' others and can bring causes of action for the damage caused by them or to disgourge any benefit received by them in quasi-contract (unjust enrichment). So, yes, the government can turn around and exclude him even after having done nothing for 20 years. And they can also bring an action for unjust enrichment for the grazing and the court can ponder the equities then of the specifics of what he might or might not be liable for based on the timing and whether any undue delay by the government works a waiver.

** And I'm pretty sure it can't be done at all, but obviously we may have a couple of cases with a very, very limited exception to what is obviously an important general rule (No adverse possession against government)

[Alyosha]

That's a bizarre argument though for many reasons. The first is that our system of property is derived from the common law system where the theory of land ownership is that all title can be traced to the sovereign and typically of course that means the state, but the federal government's land ownership predated the creation of the State of Nevada here, so we have a situation where Nevada was part of a territory and that territory was acquired by treaty, as a result of the War with Mexico. Then of course Nevada becomes a state and in essence Nevada's argument is such that it feels that it is constitutionally entitled to be the lawfully equitable successor and that since it wasn't, it was, in essence treated differently. Fine, let them bring their Equal Footing case, I don't really care because the ultimate question here is whether or not the Federal government can own land or not and fact is, they can, there is no constitutional restriction on it,

There is guidance as to what that land can be used for within the Constitution, none of which apply here. Nowhere in the Constitution or explanatory papers (Federalists) does it even imply that the government would hold land in such a manner (parks), but for military reasons, strategic reasons (buildings, expansions).

The fact that we've let this happen without protest doesn't negate the intention to not have these unused reserves.

Or do you believe that they did? (no sarcasm, curious)



Well, then he needs to get an easement of sorts as a result of adverse possession and again I really don't think you can do that against a government (on top of which even if this were a private owner, would grazing be considered 'continuous' with respect to the normal elements of adverse possession) . The issue of timing is an issue of statute of limitations/laches/stale claims of course.

Agreed.



But the theory of trespass law is quite clear, a land owner can 'exclude' others and can bring causes of action for the damage caused by them or to disgourge any benefit received by them in quasi-contract (unjust enrichment). So, yes, the government can turn around and exclude him even after having done nothing for 20 years. And they can also bring an action for unjust enrichment for the grazing and the court can ponder the equities then of the specifics of what he might or might not be liable for based on the timing and whether any undue delay by the government works a waiver.

But they did none of that, nor did they seek a judgment, put a lien on his property, etc. Don't you find that strange?

[Newpublius]

And it's pretty clear it expressly contemplates territories. The US can acquire land by treaty, Jefferson kind've doubted it, but we have the records of the federal convention here: http://press-pubs.uchicago.edu/founders/documents/a4_3_2s1.html

It would be a difficult proposition to suggest that the President, on the advice and consent of the Senate, can make treaties, but then wouldn't be able to make the kinds of treaties that most nations, specifically European ones I might add, historically made treaties about particularly when the treaty appurtenant to the founding of the nation (the nation traces its legal, de jure, sovereignty to the Declaration of Independence), ie. the Treaty of Paris, sees with it a cession of land which you would argue, the Congress wouldn't be empowered to enter into.

Story picks up on this meme here: http://press-pubs.uchicago.edu/founders/documents/a4_3_2s8.html

on top of which is basic int'l law where treaties of peace/war routinely impact the boundary, that's kind've what they did. Article IV, Section 3, Clause 2 specifically permits Congress to regulate the land it possesses.

-----

My understanding is that they are removing the cattle from the land and they can do that.....if disputed he can go to court....and say the cattle are there of right.

[Alyosha]

And it's pretty clear it expressly contemplates territories. The US can acquire land by treaty, Jefferson kind've doubted it, but we have the records of the federal convention here: http://press-pubs.uchicago.edu/founders/documents/a4_3_2s1.html

It would be a difficult proposition to suggest that the President, on the advice and consent of the Senate, can make treaties, but then wouldn't be able to make the kinds of treaties that most nations, specifically European ones I might add, historically made treaties about.

Story picks up on this meme here: http://press-pubs.uchicago.edu/founders/documents/a4_3_2s8.html

on top of which is basic int'l law where treaties of peace/war routinely impact the boundary, that's kind've what they did. Article IV, Section 3, Clause 2 specifically permits Congress to regulate the land it possesses.

-----

My understanding is that they are removing the cattle from the land and they can do that.....if disputed he can go to court....and say the cattle are there of right.

Not speaking of the ability to acquire territories, but manage land within states outside of those areas designated by the Constitution. In a bit, I'll bring up the Alabama case, but right now I don't have the time.

Meet me back in an hour?

And thanks for the argument and making me think. I need it.

[Ravi]

The land within the state is public domain. It doesn't belong to the state. How often must that be repeated before it sinks in?

[Newpublius]

The land within the state is public domain. It doesn't belong to the state. How often must that be repeated before it sinks in?

Ravi, please, just stop....all of the land within the 'state' used in its most generic sense here is land over which the state is sovereign, irrespective of who owns the land in 'fee simple' - the entire property structure has evolved from a feudal system where all land traced its title to the sovereign, in England, to the king....that doesn't mean that public property is automatically public domain. It isn't. Its why your access to public facilities can be restricted, ie. you can be convicted for burglarizing a government building. If it were public domain you could not....

[Ravi]

Ravi, please, just stop....all of the land within the 'state' used in its most generic sense here is land over which the state is sovereign, irrespective of who owns the land in 'fee simple' - the entire property structure has evolved from a feudal system where all land traced its title to the sovereign, in England, to the king....that doesn't mean that public property is automatically public domain. It isn't. Its why your access to public facilities can be restricted, ie. you can be convicted for burglarizing a government building. If it were public domain you could not....

How can the state be sovereign over the land if one, the land doesn't belong to the state, and two, the state's constitution puts the federal government as the supreme authority?

[Newpublius]

Not speaking of the ability to acquire territories, but manage land within states outside of those areas designated by the Constitution.

Well, the land in question was still acquired by treaty and when Mainecoons asks why the federal government owns so much of Nevada vis a vis other states, its a good question. After the revolution the land that ordinarily would be the 'King's' land became the land of the state in question, not the federal government. Still the federal government did acquire title to vast swaths of property. And when they did, they had the exclusive right of legislation within those territories. NJ of course existed before the federal government, but the federal government existed before Nevada. Sure, if the federal government wanted to buy land in NJ today you would want to make sure that the federal government had a valid federal purpose in doing do.

But these lands in Nevada, they acquired them by treaty, they've owned them and continued to own them. If they sold them they might not constitutionally be allowed to buy them back (I'm not sure), but there's no question about the original acquisition by treaty from Mexico.


In a bit, I'll bring up the Alabama case, but right now I don't have the time.

You're back to 'Equal Footing' and in Alabama the restrictive conditions were upheld. In NV's case, Nevada thinks they have an Equal Footing Claim based on the disposition of similar lands in other states, ie. the argument is that the Federal government should've ceded the lands to the state. This doesn't bring the federal government's initial acquisition, by treaty, into question.


And thanks for the argument and making me think. I need it.

You seem to be on Bundy's side here but ultimately think about what the strength of Bundy's claim to the land is? His claim to the land is very weak.

[Alyosha]

The land within the state is public domain. It doesn't belong to the state. How often must that be repeated before it sinks in?

Never?

[Alyosha]

Well, the land in question was still acquired by treaty and when Mainecoons asks why the federal government owns so much of Nevada vis a vis other states, its a good question. After the revolution the land that ordinarily would be the 'King's' land became the land of the state in question, not the federal government. Still the federal government did acquire title to vast swaths of property. And when they did, they had the exclusive right of legislation within those territories. NJ of course existed before the federal government, but the federal government existed before Nevada. Sure, if the federal government wanted to buy land in NJ today you would want to make sure that the federal government had a valid federal purpose in doing do.

But these lands in Nevada, they acquired them by treaty, they've owned them and continued to own them. If they sold them they might not constitutionally be allowed to buy them back (I'm not sure), but there's no question about the original acquisition by treaty from Mexico.



You're back to 'Equal Footing' and in Alabama the restrictive conditions were upheld. In NV's case, Nevada thinks they have an Equal Footing Claim based on the disposition of similar lands in other states, ie. the argument is that the Federal government should've ceded the lands to the state. This doesn't bring the federal government's initial acquisition, by treaty, into question.



You seem to be on Bundy's side here but ultimately think about what the strength of Bundy's claim to the land is? His claim to the land is very weak.

Newpublius

I want to continue to discuss this with you in depth but right now I have 1/4 battery. Will you be on later? I don't want to write out something long and have the laptop die.

[Newpublius]

How can the state be sovereign over the land if one, the land doesn't belong to the state

Because there's a distinction between being sovereign over a piece of territory and owning a piece of land. Its why if I kill my wife on my land the police are going to arrest me. Murder is illegal in NJ and I own land in New Jersey.


state's constitution puts the federal government as the supreme authority?

Don't let federalism confuse you so much.

[Ravi]

Well, that made no sense whatsoever.

[Newpublius]

I want to continue to discuss this with you in depth but right now I have 1/4 battery. Will you be on later? I don't want to write out something long and have the laptop die.

Its a message board, reply at your leisure. Its 2:40PM, I have two kids, a wife....the internet is never very far away from me.

[Peter1469]

I will try to get to this in a bit. Alyosha
Please, @Newpublius (http://thepoliticalforums.com/member.php?u=685) and @Peter1469 (http://thepoliticalforums.com/member.php?u=10) help me with this argument (that includes pointing out where I am wrong)

The Northwest Ordinance (http://avalon.law.yale.edu/18th_century/nworder.asp) was passed in 1787, and created the legal concept of "equal footing", ie any new state would have the same rights of the original thirteen. This was backed up by the Supreme Court in Pollard versus Hagan (https://supreme.justia.com/cases/federal/us/44/212/case.html) regarding the new state of Alabama where the court stated that,



Once you are a state, the federal government gives you those same rights of the original thirteen which were protected by the Enclave Clause of Article 1, Section 8: ...the Congress shall have the power to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dock-yards and other needful buildings.

There is a tradition of the government overstepping its boundaries, so we have accepted that this is legal in the same way that the guards accepted Obiwan's "you don't need to see his identification", but that doesn't mean that it is legal.

[nic34]

Well, the land in question was still acquired by treaty and when Mainecoons asks why the federal government owns so much of Nevada vis a vis other states, its a good question. After the revolution the land that ordinarily would be the 'King's' land became the land of the state in question, not the federal government. Still the federal government did acquire title to vast swaths of property. And when they did, they had the exclusive right of legislation within those territories. NJ of course existed before the federal government, but the federal government existed before Nevada. Sure, if the federal government wanted to buy land in NJ today you would want to make sure that the federal government had a valid federal purpose in doing do.

But these lands in Nevada, they acquired them by treaty, they've owned them and continued to own them. If they sold them they might not constitutionally be allowed to buy them back (I'm not sure), but there's no question about the original acquisition by treaty from Mexico.



You're back to 'Equal Footing' and in Alabama the restrictive conditions were upheld. In NV's case, Nevada thinks they have an Equal Footing Claim based on the disposition of similar lands in other states, ie. the argument is that the Federal government should've ceded the lands to the state. This doesn't bring the federal government's initial acquisition, by treaty, into question.



You seem to be on Bundy's side here but ultimately think about what the strength of Bundy's claim to the land is? His claim to the land is very weak.

Exactly. That is why he has not prevailed in court for 20 years. He cannot produce any documentation or agreement dating back to the 1870's and nothing anywhere said agreement would even be transferable from one generation to the other.

[Alyosha]

Well, the land in question was still acquired by treaty and when Mainecoons asks why the federal government owns so much of Nevada vis a vis other states, its a good question. After the revolution the land that ordinarily would be the 'King's' land became the land of the state in question, not the federal government. Still the federal government did acquire title to vast swaths of property. And when they did, they had the exclusive right of legislation within those territories. NJ of course existed before the federal government, but the federal government existed before Nevada. Sure, if the federal government wanted to buy land in NJ today you would want to make sure that the federal government had a valid federal purpose in doing do.

My interpretation of Pollard is that "how" the federal government acquired the territory is unimportant. Post statehood "Equal Footing" must kick in, this part here:


if an express stipulation had been inserted in the agreement, granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative: because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a state or elsewhere, except in the cases in which it is expressly granted.

Alabama is therefore entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it before she ceded it to the United States. To maintain any other doctrine, is to deny that Alabama has been admitted into the union on an equal footing with the original states, the constitution, laws, and compact, to the contrary notwithstanding ... and no compact that might be made between her and the United States could diminish or enlarge these rights.

That area that once was Georgia would be no different than the area purchase in the Northwest Ordinance, and all sovereignty (meaning jurisdiction and authority) would confer to the state's governing body over the land. For the US to maintain sovereignty over a portion of that land wouldn't it (this is a question) have to constrain its use to those constitutionally justified areas of: garrisons, forts, docks, or public buildings?

Parks are recreational and or decorative and not something called out in our Constitution. I could see if the federal government held it to sell or use at a future date for one of the constitutionally accepted uses, but it is not.

Nevada in 2010 even asserted this through its own legislature, that the land should confer back to the state for administration under Equal Footing.

Why I bring this up is that this event may be the trigger for Nevada to show its interests in the matter.




But these lands in Nevada, they acquired them by treaty, they've owned them and continued to own them. If they sold them they might not constitutionally be allowed to buy them back (I'm not sure), but there's no question about the original acquisition by treaty from Mexico.


True, but the same could be said of any pre-state territory and that does not negate transfer of sovereignty.





You're back to 'Equal Footing' and in Alabama the restrictive conditions were upheld. In NV's case, Nevada thinks they have an Equal Footing Claim based on the disposition of similar lands in other states, ie. the argument is that the Federal government should've ceded the lands to the state. This doesn't bring the federal government's initial acquisition, by treaty, into question.



Never said that it did. I question it's continuous sphere of influence.




You seem to be on Bundy's side here but ultimately think about what the strength of Bundy's claim to the land is? His claim to the land is very weak.

He is not laying claim to the land. His argument is that he owes fees to Nevada (his local tax base) and not the federal government.

[Alyosha]

Exactly. That is why he has not prevailed in court for 20 years. He cannot produce any documentation or agreement dating back to the 1870's and nothing anywhere said agreement would even be transferable from one generation to the other.

That wasn't his legal argument, though. :)

[Alyosha]

Well, that made no sense whatsoever.

I don't doubt it.

[Bob]

[QUOTE=Alyosha;577922]Broken what law? Only Congress has the power to tax. I'll concede that the BLM has the right to levy a tax when someone shows me the Congressional authority (also the BLM's congressional authority).[/QUOTE}

I am thinking that they backed away from Bundy upon advice of the Fed legal team.

[Bob]

http://www.infowars.com/flashback-sen-reid-breaks-ground-for-nevada-solar-farm-near-bundy-ranch/

Kit Daniels
Infowars.com
April 14, 2014
Senate Majority Leader Harry Reid (D-Nev.), who was exposed last Friday as the mastermind behind the Bureau of Land Management’s persecution of Nevada rancher Cliven Bundy (http://www.infowars.com/breaking-sen-harry-reid-behind-blm-land-grab-of-bundy-ranch/), can be seen in this March 2014 photo breaking ground for a new solar farm near the Bundy Ranch, emphasizing that the senator’s plan for solar projects in Nevada wasn’t just limited to the shelved solar farm near Laughlin.


Signaling the first day of construction of the Moapa Southern Paiute Solar Project, which is about 35 miles from the Bundy homestead in Bunkerville, Nevada, Sen. Reid joined representatives from the Moapa Band of Paiutes, executives from First Solar, Inc. and the Los Angeles Department of Water and Power for the groundbreaking ceremony on March 21.
“First Solar is thrilled to celebrate this important milestone with Sen. Reid and distinguished guests, and honored to work with the Moapa Band of Paiutes on this landmark project,” Jim Hughes, the CEO of First Solar, said at the time (http://www.businesswire.com/news/home/20140321005764/en/Moapa-Paiute-Tribe-LADWP-Solar-Break-Ground%23.U0wAHcfqJFQ).
The development of solar farms just like this one is exactly why Sen. Reid was using the BLM, whose director is Reid’s former senior advisor, to push Bundy out of the Gold Butte area his family has worked for over 140 years (http://www.infowars.com/breaking-sen-harry-reid-behind-blm-land-grab-of-bundy-ranch/).
As we revealed last Friday in an article (http://www.infowars.com/breaking-sen-harry-reid-behind-blm-land-grab-of-bundy-ranch/) that became the #1 news story in the world for 24 hours (http://www.infowars.com/feds-back-down-from-bundy-siege-after-infowars-expose-of-chinese-land-grab/), the BLM specifically stated that it wanted Bundy and his cattle out of the area as part of the agency’s “regional mitigation strategy for the Dry Lake Solar Energy Zone (http://www.blm.gov/pgdata/etc/medialib/blm/wo/blm_library/tech_notes.Par.29872.File.dat/TN_444.pdf).”
The BLM attempted a cover-up by deleting documents exposing the plan from its web site, but fortunately contributors at the Free Republic were able to save them for posterity (http://www.infowars.com/breaking-sen-harry-reid-behind-blm-land-grab-of-bundy-ranch/).

[Bob]

Trespassing. It's not his land.....

In California, a person who does not own the land, with certain conditions, can take title to the land so long as the rightful owner does not intercede. In this case, the person taking over the land must pay all taxes to the state.

I can't see Bundy paid taxes yet he has long used the land and it appears most of the era was with no protest by the Feds. (from 1870 forward) I am not clear when the Feds first demanded rents. But If Bundy wants to pay the state, and I find no proof at this moment this is his view, fine. I suppose the Feds would simply demand the state forward any paid rents.

[Bob]

More particularly the land is part of the public domain, held in trust by the Federal government for the people.

Held in trust means they plan to give it back. Who would they give it back to? Nevada and Bundy could stake a claim to the land.

[Bob]

Ravi, are you Peter or Newpublius? No. Why don't you find some religion major who will counter the scientists from Princeton and Washington state while I have a decent discussion with a worthy adversary?

Laughing my ass off. Ravi can sure be a stick in the mud.

[Bob]

In this instance, The US acquired it by treaty, Alyosha, and the Property Clause permits the federal government to own land and for the federal government to regulate it accordingly. The basic fact pattern has already been ruled upon in Kleppe v New Mexico where the federal government stopped grazing because Congress was trying to protect some other endangered species. Nobody suggests that the federal land ownership is unconstitutional, ab initio.

even if we take the most narrow view of federal property ownership, ie that they have a proprietor's interest and can't exercise a federal police power, the end result only changes in that a Nevada sheriff would be enforcing the Federal government's ownership interest.

and finally even if we went with some kind of unconstitutional land ownership theory which would compel the federal government to dispossess itself of the property, that wouldn't revert to free grazing rights for Bundy, the government would sell it, the people of the US would get the proceeds and the new private owner, which could be Bundy, or more likely the State of Nevada, could then charge for grazing.

Years ago, maybe around 1988, I wondered what the problem would be with the Feds selling off property they own. It seems to be one major problem after another. I can't recall the wording but the gist is that they have no way to sell the land unless sold to a government, such as a state or city. They can't sell that land to Bundy. I can't recall the law but recall reading it.

My purpose was to find out how the Feds could sell off property to pay off the national debt. Some jerks created a law that blocks that. Unless as I say, they sell it to a state, etc. But I believe that when they dispose of property to a state, it is gratis.

[Bob]

I'm implying that the government has none of the Constitutionally prescribed, lawful reasons for land ownership in this case, but that time without fervent opposition has given it possession.



Agreed.



I don't think that is what he is doing. I think he's challenging the fees. I think 20 years of non-collection of fees without lien, without judgment, with impunity also implies accepted use.

I back this argument. In red for sure.

[Peter1469]

I agree that the federal government does a lot of things today that the Founders and many other national leaders through much of our history would have balked at.* But we have had several statutes passed that greatly increase federal power over states and individuals with regards to land use. The Environmental Protection Act (http://www2.epa.gov/laws-regulations/laws-and-executive-orders) for one. And the Federal Land Management Act (http://www.blm.gov/flpma/FLPMA.pdf) for another (this includes the regulations for grazing fees, sec. 401, and grazing permits, sec. 402).

With that said, I would offer this article from PowerLine. Why You should be sympathetic to Bundy: (http://www.powerlineblog.com/archives/2014/04/why-you-should-be-sympathetic-toward-cliven-bundy.php)


First, it must be admitted that legally, Bundy doesn’t have a leg to stand on. The Bureau of Land Management has been charging him grazing fees since the early 1990s, which he has refused to pay. Further, BLM has issued orders limiting the area on which Bundy’s cows can graze and the number that can graze, and Bundy has ignored those directives. As a result, BLM has sued Bundy twice in federal court, and won both cases. In the second, more recent action, Bundy’s defense is that the federal government doesn’t own the land in question and therefore has no authority to regulate grazing. That simply isn’t right; the land, like most of Nevada, is federally owned. Bundy is representing himself, of necessity: no lawyer could make that argument.

The author goes on to argue that nevertheless we should sympathize with Bundy, because the federal land use policies are often arbitrary and worse, biased for special interests. Ranchers are being targeted by the federal government for removal from this land.

I would add that the Federal government's handling of this matter was beyond heavy-handed. The federal government has many other tools to prove its point, the most simple is a lien on Bundy's livestock and tax returns. For it to show up in full military kit and threaten to killed America citizens over cattle grazing fees should give us all pause. There is no excuse for it. It is tyranny.

* There are many good arguments that the 16th Amendment was never legally ratified, yet, no modern court is going to accept those arguments.

Regarding your argument that state court would be the proper venue, I need to look through the FMLA, because it may have delegated lots of the enforcement authority to the state where the land is located.
Alyosha

[Bob]

That's a bizarre argument though for many reasons. The first is that our system of property is derived from the common law system where the theory of land ownership is that all title can be traced to the sovereign and typically of course that means the state, but the federal government's land ownership predated the creation of the State of Nevada here, so we have a situation where Nevada was part of a territory and that territory was acquired by treaty, as a result of the War with Mexico. Then of course Nevada becomes a state and in essence Nevada's argument is such that it feels that it is constitutionally entitled to be the lawfully equitable successor and that since it wasn't, it was, in essence treated differently. Fine, let them bring their Equal Footing case, I don't really care because the ultimate question here is whether or not the Federal government can own land or not and fact is, they can, there is no constitutional restriction on it, Congress can own land and acquire it on a 'rational basis' -- the US government acquired and then sold quite a bit of land in the west no less, ie for railroads, etc. and even gave much land away, your doctrine simply places any title to any land, obviously this is a situation limited to places that were a territory at some point in time, in question. Not to mention, the initial cession of places like the Northwest Territory by states to the US government (the original states in theory claimed land pretty far to the west) showing quite clearly that the US government could simply hold land for the sake of holding land, ie. in trust and on behalf of the people of the United States would be too difficult to ignore.

From the point of view of a person living in NJ, I get it. But Mexico and the USA did not use English Common law in the treaty. They used Spanish law. The treaty of Hidalgo has to be considered.

[Bob]

I agree that the federal government does a lot of things today that the Founders and many other national leaders through much of our history would have balked at.* But we have had several statutes passed that greatly increase federal power over states and individuals with regards to land use. The Environmental Protection Act (http://www2.epa.gov/laws-regulations/laws-and-executive-orders) for one. And the Federal Land Management Act (http://www.blm.gov/flpma/FLPMA.pdf) for another (this includes the regulations for grazing fees, sec. 401, and grazing permits, sec. 402).

With that said, I would offer this article from PowerLine. Why You should be sympathetic to Bundy: (http://www.powerlineblog.com/archives/2014/04/why-you-should-be-sympathetic-toward-cliven-bundy.php)



The author goes on to argue that nevertheless we should sympathize with Bundy, because the federal land use policies are often arbitrary and worse, biased for special interests. Ranchers are being targeted by the federal government for removal from this land.

I would add that the Federal government's handling of this matter was beyond heavy-handed. The federal government has many other tools to prove its point, the most simple is a lien on Bundy's livestock and tax returns. For it to show up in full military kit and threaten to killed America citizens over cattle grazing fees should give us all pause. There is no excuse for it. It is tyranny.

* There are many good arguments that the 16th Amendment was never legally ratified, yet, no modern court is going to accept those arguments.

Regarding your argument that state court would be the proper venue, I need to look through the FMLA, because it may have delegated lots of the enforcement authority to the state where the land is located.

Peter, will you consider what the treaty of Hidalgo did in reference to lands taken by force from Mexico?

[Peter1469]

Peter, will you consider what the treaty of Hidalgo did in reference to lands taken by force from Mexico?

I believe that the Treaty of Guadalupe Hidago was silent on all matters north of the new boarder (the Rio Grand) other than provisions to allow Mexicans citizens to choose to stay as American citizens. ~90% of them chose to become Americans. The rest left for Mexico.

I imagine that if you own land in what was the new American territory after the war, the long form of your land title would end (reverse order) in 1848 with the entry: Title By Right of Conquest.

[Bob]

Well, that made no sense whatsoever.

OK, so you don't comprehend law.

Newpublis has sure enlightened me and so has Alyosha and Peter.

I brought up the treaty of Guadalupe Hidalgo but though I know it speaks of the rights of women and land, I find nothing in it about this matter. We in CA recognize the treaty since it impacts on our lands and homes.

Those in the non Mexico lands taken by Polk don't perhaps know of the treaty of Guadalupe Hidalgo. ie, the colonies and states east of Colorado for instance.

[Bob]

http://thepoliticalforums.com/images/misc/quote_icon.png Originally Posted by Bob http://thepoliticalforums.com/images/buttons/viewpost-right.png (http://thepoliticalforums.com/showthread.php?p=578553#post578553)
Peter, will you consider what the treaty of Hidalgo did in reference to lands taken by force from Mexico?


I believe that the Treaty of Guadalupe Hidago was silent on all matters north of the new boarder (the Rio Grand) other than provisions to allow Mexicans citizens to choose to stay as American citizens. ~90% of them chose to become Americans. The rest left for Mexico.

I imagine that if you own land in what was the new American territory after the war, the long form of your land title would end (reverse order) in 1848 with the entry: Title By Right of Conquest.

In California, we had to learn that treaty since it impacts on property rights in this state. I knew it also applied to Nevada. I too find nothing, though I have yet to see the clear text of it, and I expect as you say that it was to protect the Mexicans and make sure Mexican women had property rights as well as other matters. It is taught in our Real Estate law courses which I have passed.

English Common law at that time was different on spouse property rights so the Mexicans demanded that Spanish law be used for the residents who were former Mexican citizens.

[Peter1469]

In California, we had to learn that treaty since it impacts on property rights in this state. I knew it also applied to Nevada. I too find nothing, though I have yet to see the clear text of it, and I expect as you say that it was to protect the Mexicans and make sure Mexican women had property rights as well as other matters. It is taught in our Real Estate law courses which I have passed.

English Common law at that time was different on spouse property rights so the Mexicans demanded that Spanish law be used for the residents who were former Mexican citizens.

Are you talking about community property rights? Yes many of those states are community property states (http://taxes.about.com/od/taxglossary/g/CommunityProper.htm).

I was really thinking about land use rights.

[Spectre]

I've heard an army of lawyers discuss this: NONE of them think Bundy has a case.

[Peter1469]

I've heard an army of lawyers discuss this: NONE of them think Bundy has a case.

Under current accepted case law he does not.

Under very intelligent dissent he does. But the system isn't going to reform itself. At least not today.

[Newpublius]

That area that once was Georgia would be no different than the area purchase in the Northwest Ordinance, and all sovereignty (meaning jurisdiction and authority) would confer to the state's governing body over the land.

An irrelevant proposition for a very simple reason. Why? Because whether the federal government is 'sovereign' over that land in a manner similar to the District of Columbia (and in no way limited other aspects of national sovereignty which does exist), we're still discussing who the deed, owner of record is, and that doesn't change on the evolution of sovereignty from territory to state. In essence, if the federal government maintained sovereignty, the land wouldn't actually be 'in Nevada' -- it is -- as opposed to the land in DC not actually being in Maryland. When the Federal Government ceded that portion of the District of Columbia back to VA, the Federal Government continued to own land there.

I can have Federal Government owned land in Virginia which survives reversion to the state of Virginia and they can exclude Bundy there and I can have Federal Government owned land in DC and they can obviously still exclude Bundy as well, the underlying sovereign entity isn't really important with respect to who the deed owner is. Nevada's Equal Footing claim is making more of an equitable assertion that they should've become the owner of record along with the sovereignty transfer BECAUSE the federal government did likewise with respect to other states.

[Newpublius]

I imagine that if you own land in what was the new American territory after the war, the long form of your land title would end (reverse order) in 1848 with the entry: Title By Right of Conquest.

In most instances it would trace to a land patent issued by the US government.

http://upload.wikimedia.org/wikipedia/commons/4/4f/Freeman_homestead-certificate.jpg

[Dr. Who]

U.S. v. GARDNER NO. CV-N-95-328-DWH - US District Court, Nevada.


In discussing the Equal Footing Doctrine, the Supreme Court has recognized that each state, upon entering the Union, came with different amounts of land owned by the federal government. Texas, 339 U.S. at 716, 70 S.Ct. at 922-23. The Court has rejected the notion that this or other physical and economic differences were somehow precluded by the Equal Footing Doctrine: "The requirement of equal footing was designed not to wipe out these diversities but to create parity as respects political standing and sovereignty." Id

11. The Equal Footing Doctrine has a direct effect on property rights in only one limited way, and that is to transfer title to States upon their entry to the Union of tidelands and submerged lands underlying inland navigable waterways. U.S. v. California, 332 U.S. 19 (http://www.leagle.com/get_cited/332 U.S. 19), 29-39, 67 S.Ct. 1658, 1663-69, 91 L.Ed. 1889 (1947).

12. This aspect of the doctrine has its roots in English common law which provided that the King had title in the soil of the sea below high water mark. (Shively v. Bowlby, 152 U.S. 1 (http://www.leagle.com/get_cited/152 U.S. 1), 57, 14 S.Ct. 548, 569, 38 L.Ed. 331 (1894)). Because the Original 13 States were deemed to have the same right to these tidelands as the King, the Supreme Court held that new states should also have title to these submerged lands.

13. During the 1800s, the Supreme Court extended this Doctrine to include submerged land under navigable inland waterways not subject to the ebb and flow of the tide. [See, e.g., Barney v. Keokuk, 94 U.S. 324 (http://www.leagle.com/get_cited/94 U.S. 324), 338, 24 L.Ed. 224 (1877); Illinois Central Railroad v. Illinois, 146 U.S. 387 (http://www.leagle.com/get_cited/146 U.S. 387), 435-37, 13 S.Ct. 110, 111-12, 36 L.Ed. 1018 (1892).] The Court based this extension on its observation that the original rule was founded on the need for public use of navigable waterways. Due to its particular factual settings, England happened to equate "tide waters" with "navigable waters." [Illinois Central Railroad, 146 U.S. at 436, 13 S.Ct. at 111.] In contrast, in the United States, there were tens of thousands of miles of navigable waterways not subject to the tide. Accordingly, the Court extended the Doctrine so that states were given title to land underlying all navigable waterways, whether or not subject to the tide. See, Id., at 436-37, 13 S.Ct. at 111-12.
14. To the limited extent the Equal Footing Doctrine applies to proprietary rights, it derived from the English common law which gave the King title to lands that were subject to the ebb and flow of the tide. Upon the American revolution, the original states were deemed to have the same rights as the King in this regard, and thus had title to these tidal lands, which were to be held in trust for the public. Id. The Supreme Court held that all states to lands given the same sovereign rights as the original 13 states to lands which were subject to the ebb and flow of the tide. Id., 152 U.S. at 57-58, 14 S.Ct. at 569-70.15. The Equal Footing Doctrine does not, however, extend to upland territory. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (http://www.leagle.com/get_cited/484 U.S. 469), 473-76, 108 S.Ct. 791, 793-95, 98 L.Ed.2d 877 (1988). The Phillips decision made clear that the submerged lands subject to the Doctrine included both (a) submerged lands underlying navigable inland waterways and (b) coastal lands subject to the ebb and flow of the tide (whether or not underlying navigable water). See, Id.16.


In short, any argument that the Doctrine extends beyond submerged lands has no basis whatsoever. In fact, the Supreme Court has even refused to extend the Doctrine to all submerged lands. United States v. California, 332 U.S. 19 (http://www.leagle.com/get_cited/332 U.S. 19), 67 S.Ct. 1658, 91 L.Ed. 1889 (1947). With this decision, the Court limited the Pollard Doctrine to a subset of submerged lands. See also, Arizona v. California, 373 U.S. 546 (http://www.leagle.com/get_cited/373 U.S. 546), 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963).

http://www.leagle.com/decision/19952297903FSupp1394_12104

[Newpublius]

That pretty much shoots down Nevada's claim being made through the resolution.

[Dr. Who]

That pretty much shoots down Nevada's claim being made through the resolution.

Not much chance of SCOTUS overturning itself.

[Peter1469]

In most instances it would trace to a land patent issued by the US government.

http://upload.wikimedia.org/wikipedia/commons/4/4f/Freeman_homestead-certificate.jpg

Nice, but not a title by right of conquest example. 1868. This looks like Homestead Act title. (Which de facto is by Right of Conquest.) From the Indians- feather, not dot.

[Bob]

http://thepoliticalforums.com/images/misc/quote_icon.png Originally Posted by Spectre http://thepoliticalforums.com/images/buttons/viewpost-right.png (http://thepoliticalforums.com/showthread.php?p=578831#post578831)
I've heard an army of lawyers discuss this: NONE of them think Bundy has a case.


Under current accepted case law he does not.

Under very intelligent dissent he does. But the system isn't going to reform itself. At least not today.

I know my stand, however I can't recall claiming he has a legal case. I sympathize with Bundy for reasons I have stated in the past.

One of my claims is he provided a valuable service to the Feds.

Take for instance a Federal building has a lawn to mow. They pay for that. I see his acts as essentially mowing the grass using cattle. While I have not seen any agreement by him to pay rent or use the land, his claims seem to show us he has long worked that land.

[Newpublius]

Nice, but not a title by right of conquest example. 1868. This looks like Homestead Act title. (Which de facto is by Right of Conquest.) From the Indians- feather, not dot.

Well, we're discussing tracing title and while we understand that conquest terminated Mexico's right to convey the land (or the Mexican state that occupied the area, if any), the land patent is as far back as the title search will go and in most instances the need to go back that far probably doesn't exist.

I don't think the US has conquest deeds anywhere, if they do, they do, but the origin of deeds is always a sovereign entity, a land patent/first title deed.....some land titles do originate in sovereign entities other than the US, or the applicable state. People who owned land before the Revolution, or from before the Mexican War or the purchase of Alaska can trace to Great Britain, Russia, Mexico, some even to France...after the US assumed sovereignty anything not .... Kids crying.... Brb...but in the West most land wasn't previously owned so most deeds have their root in similar kinds of land patents.

[Dr. Who]

I know my stand, however I can't recall claiming he has a legal case. I sympathize with Bundy for reasons I have stated in the past.

One of my claims is he provided a valuable service to the Feds.

Take for instance a Federal building has a lawn to mow. They pay for that. I see his acts as essentially mowing the grass using cattle. While I have not seen any agreement by him to pay rent or use the land, his claims seem to show us he has long worked that land.

His best chance would have been under prescriptive easement, but the Federal Court in Nevada is not an easy sell. He would also have to prove that he had exclusive use for the last 10 years, which might be hard to do if other ranchers were using the same grazing areas. Additionally much of the case law on the subject rejects the notion of profiting from your trespass.

[Bob]

His best chance would have been under prescriptive easement, but the Federal Court in Nevada is not an easy sell. He would also have to prove that he had exclusive use for the last 10 years, which might be hard to do if other ranchers were using the same grazing areas. Additionally much of the case law on the subject rejects the notion of profiting from your trespass.

Is that legal against the Feds? I read one poster say you can't take that sort of action vs the Feds.

Newpublis said it.

[Dr. Who]

Is that legal against the Feds? I read one poster say you can't take that sort of action vs the Feds.

Newpublis said it.

Based on what I've read you can sometimes. Depends on the State. I don't know if anyone has ever succeeded against the BLM on land grazing rights arguing prescriptive easement. Most of the prescriptive easement cases against the BLM that have succeeded involved water access issues. Unfortunately Nevada case law is not online, so you have to find cases that have been posted by other entities. Every State has it's own body of case law, so they aren't necessarily transferrable to a different jurisdiction.

[Newpublius]

One of my claims is he provided a valuable service to the Feds.

Take for instance a Federal building has a lawn to mow. They pay for that. I see his acts as essentially mowing the grass using cattle. While I have not seen any agreement by him to pay rent or use the land, his claims seem to show us he has long worked that land.

that's a farcical interpretation of what's happening here.

[Newpublius]

Is that legal against the Feds? I read one poster say you can't take that sort of action vs the Feds.

Newpublis said it.

The problem with law is that there always seems to be certain circumstances that beg for an exception. I can assure you the general rule, black letter law I might add, is that you can't claim adverse possession against the government. With respect to easements, if I had a landlocked parcel and needed an easement across government land to get to a public road, or needed some right of way....indeed there'd be a good chance to get an easement by necessity under those circumstances. A prescriptive easement is a bit different though, that occurs because you've bee using the easement continuously and essentially nobody stops you. In a sense its like the 'adverse possession' of easements and indeed one would be hard pressed to get the factual circumstances that a judge would actually permit such an easement to be impressed against a government parcel.

I would love to see that case actually because in essence the judge has to say, "I'm going to allow the easement to be of record AND I also think its completely fair that the litigant not pay for the right of way" -- I'm pretty sure you have to have a bizarre set of circumstances for that to happen.

Nevertheless, don't let the remote chance of a prescriptive easement make the current situation any less out of focus.