Prescriptive Rights: a Constitutional Perspective on the Bundy Ranch Crisis

Does Cliven Bundy Have “Prescriptive Rights”? A Deeper Look at the Bundy Ranch Crisis18th April 2014

By Ben Swann  &  Michael Lotfi

Guest Writers for Wake Up World

In this ongoing story surrounding cattle rancher Cliven Bundy, there are a series of questions mainstream media has ignored. For instance, in the 20 years Bundy hasn’t been paying his fees, why hasn’t he been taken to court? Why this year spend nearly $1,000,000 of taxpayer money to round up 400 cattle that ultimately have to be returned? Why didn’t the Bureau of Land Management  (BLM) just place a lien on the cattle rather than attempting to take them by force and then auction them off?

The Bureau of Land Management has suffered a huge black eye this week because of their response to the Bundy situation. Perhaps though, there is a reason the BLM chose force over the courts.

In an exclusive interview with Benswann.com, Montana cattle rancher Todd Devlin says the BLM is now considering new ways of dealing with the Cliven Bundy situation. Devlin is not just a Montana cattle rancher but is also a County Commissioner in Prairie County, Montana and he has worked with the Department of Interior, having taught workshops for the agency in the past. On Monday, Devlin reached out to his contacts in the Department of the Interior to find out why the Bureau of Land Management has refused to work with Bundy rather than simply attempting to run over him.

Among the questions Devlin asked of the BLM:  “Is it possible that this guy (Cliven Bundy) has prescriptive rights?”

The response from top officials at the BLM:  “We are worried that he might and he might use that defense.”

So what exactly are prescriptive rights?

Prescriptive right to property is an easement that gives someone the right to use land owned by someone else for a particular purpose. An example is using a path through Party A’s land to get to your land; in this case a prescriptive easement is allowed which gives the user the right to get to his land through A’s property.

In most states, if a trespass or use of land occurs regularly for at least 5 years without the “owner” of the land taking legal action, prescriptive rights come into play. Because Bundy stopped paying his grazing fees to the BLM in 1993 but continued to use the land for over 20 years, it is possible he now has prescriptive rights to the land. That might explain why the BLM has not taken this issue to court and never bothered to file a lien against the cattle.

Granted, there have been court actions over the years. In 1998 a federal judge issued a permanent injunction against Bundy, ordering him to remove his cattle from the federal lands. He lost an appeal to the San Francisco 9th Circuit Court of Appeals. Yet, the “trespass cattle” remained on the BLM land. In fact, it took until August of 2013 for a court order to be issued saying Bundy had 45 days to remove his cattle from federal land. 15 years went by from the time of the last court case over the cattle, until the BLM attempted to remove the livestock.

Of course, Bundy has not made the claim that he will not pay the fees, he simply says he will not pay those fees to the BLM because he doesn’t recognize federal authority over the land. Bundy has said that in the past, that he would pay fees to Clarke County, Nevada, though Clarke County has refused to accept them. The BLM has insisted that Bundy owes $1.1 million dollars in grazing fees for his trespass cattle.  “The actual number is probably around $200,000. The $1.1 million claimed by the BLM is probably mostly interest and penalties for trespass cattle.”  says Devlin, who goes on to say that it is unlikely that Clarke County would be able to collect those penalties.

When Devlin reached out to the BLM, he suggested that the federal agency just allow Bundy to pay the fees to the county rather than continuing with these aggressive tactics to confiscate his cattle. “I got a call back from the liaison saying ‘Yes, pursue it’, says Devlin.  Devlin reached out to contacts in Nevada to get that process moving forward. If that were to happen, Clarke County could collect the grazing fees and if it desired to do so could hand those fees over to the BLM.

Finally, Devlin says instead of allowing the situation with Bundy’s cattle to grow completely out of control, the BLM could have simply placed a lien on the cattle in the first place. Of course, that lien might have been rejected in court if Bundy were able to demonstrate those prescriptive rights. Then again, the courts so far have sided with the government, therefore it is even more baffling why the lien wasn’t placed on the livestock.

Days after the BLM has claimed they will stand down, they are now reportedly considering a lien on the cattle.  “I asked why they didn’t put a lien against the cattle… They hadn’t thought about that but they are considering it now”.

Who Actually “Owns” America’s Land?

Here we see a modern representation of Americans awakening to the insidious growth of our Federal Creature. Over the weekend, the fierce stand-off between Bundy Ranch militiamen and the Bureau of Land Management (BLM) came to a dramatic end – for now – with the protesters chasing government representatives off the disputed land.

But this situation raises the important question….  Does the Constitution make provision for the federal government to own and control “public land”? This is the only question we need to consider. Currently, the federal government “owns” approximately 30% of the United States territory. The majority of this federally owned land is in the West. For example, the feds control more than 80% of Nevada and more than 55% of Utah. The question has been long debated. At the debate’s soul is Article IV, Section 3, Clause 2 of the Constitution, which is know as the “Property Clause”. Proponents of federal expansion on both sides of the political aisle argue that this clause provides warrant for the federal government to control land throughout the United States.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States….

Those who say this clause delegates the feds control over whatever land they arbitrarily decide to lay claim to are grossly misinterpreting even the most basic structure of the Constitution.

It is said the Constitution is “written in plain English”. This is true. However, plain English does not allow one to remove context. Article IV does not grant Congress the power to exercise sovereignty over land.  Article IV  deals exclusively with state-to-state relations such as protection from invasion, slavery, full faith and credit, creation of new states and so on.

Historically, the Property Clause delegated federal control over territorial lands up until the point when that land would be formed as a state. This was necessary during the time of the ratification of the Constitution due to the lack of westward development. The clause was drafted to constitutionalize the  Northwest Ordinance, which the Articles of Confederation did not have the power to support. This ordinance gave the newly formed Congress the power to create new states instead of allowing the states themselves to expand their own land claims.

The Property Clause and Northwest Ordinance are both limited in power and scope. Once a state is formed and accepted in the union, the federal government no longer has control over land within the state’s borders. From this moment, such land is considered property of the sovereign state. The continental United States is now formed of fifty independent, sovereign states. No “unclaimed” lands are technically in existence. Therefore, the Property Clause no longer applies within the realm of federal control over these states.

The powers of Congress are found only in Article I, Section 8 of the Constitution. With the exception of the less than two dozen powers delegated to Congress found within Article I, Section 8, Congress may make no laws, cannot form political agencies and cannot take any actions that seek to regulate outside of these enumerated powers.

Article I, Section 8 does lay forth the possibility of federal control over some land. What land?  Clause 17  defines these few exceptions.

To exercise exclusive Legislation in all Cases whatsoever, over such  District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and 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–  (Emphasis added).

Article I, Section 8, Clause 17 is known as the Enclave Clause. The clause gives federal control over the “Seat of Government” (Washington D.C.) and land that has been purchased by the federal government with consent of the state legislatures to build military posts and other needful buildings (post offices and other structures pursuant to Article I, Section 8). Nothing more.

State permission being a requirement, state authority was explicitly emphasized while drafting this clause. The founders and respective states insisted (with loud cries) that the states must consent before the federal government could purchase land from the states. Nowhere in this clause will you find the power for Congress to exercise legislative authority through regulation over 80% of Nevada, 55% of Utah, 45% of California, 70% of Alaska, or any other state. Unless, of course, the state has given the federal government the formal authority to do so, which they have not.

If a state legislature decides sell land to the federal government then at that point the Enclave Clause becomes applicable and the federal government may seize legislative and regulatory control in pursuance to the powers delegated by Article 1, Section 8.

In America’s infancy, the Supreme Court of the United States upheld the Founding Fathers’ understanding of federal control over land. Justice Stephen J. Field wrote for the majority opinion in  Fort Leavenworth Railroad Co. v. Lowe  (1855) that federal authority over territorial land was “necessarily paramount.” However, once the territory was organized as a state and admitted to the union on equal ground, the state government assumes sovereignty over federal lands, and the federal government retains only the rights of an “individual proprietor”. This means that the federal government can only exercise general sovereignty over state property if the state legislatures formally grant the federal government the power to do so under the Enclave Clause with the exception of federal buildings (post offices)  and military installations. This understanding was reaffirmed in  Lessee of Pollard v. Hagan  (1845),  Permoli v. Municipality No. 1 of the city of New Orleans  (1845) and  Strader v. Graham  (1850).

However, it did not take long for the Supreme Court to begin redefining the Constitution and legislating from the bench under the guise of interpretation.  Case by case, the Court slowly redefined the Property Clause, which had always been understood to regard exclusively the transferring of federal to state sovereignty through statehood, to the conservation of unconstitutional federal supremacy.

Federal supremacists sitting on the Supreme Court understood that by insidiously redefining this clause then federal power would be expanded and conserved.

With  Camfield  v. United States  (1897),  Light v. United States  (1911),    Kleppe v. New Mexico  (1976) and multiple other cases regarding commerce, federal supremacists have effectively erased the constitutional guarantee of state control over property.

Through the centuries, by the hand of corrupt federal judges, we arrive and the  Bundy Ranch in Nevada. The Founding Fathers never imagined the citizens of a state would be subject to such treatment at the hands of the federal government. Furthermore, they certainly never imagined the state legislatures themselves would allow such treatment to go unchecked. The latest updates appear to show that Bundy has won his battle against the feds– for now. However, it remains a damn shame that the state of Nevada would allow for such a situation to arise in the first place.

What does  Nevada’s Constitution  say about property? Section 1, titled “Inalienable Rights,” reads:

All men are by Nature free and equal and have certain inalienable rights among which are those of enjoying and defending life and liberty;  Acquiring, Possessing and Protecting property  and pursuing and obtaining safety and happiness.   [Emphasis added]

In Section 22 of the Nevada Constitution, eminent domain is clarified. The state Constitution requires that the state prove public need, provide compensation and documentation before acquiring private property. In order to grant land to the federal government, the state must first control this land.

Bundy’s family has controlled the land for more than 140 years.

The Bureau of Land Management (BLM), which is an agency created by Congress, claimed that Bundy was “violating the law of the land”. Perhaps the agency has forgotten that the law of the land is the Constitution, and the only constitutional violation here is the very modern existence of the agency’s presence in Nevada.

About the authors:

Ben SwannBen Swann  spent 15 years working as a journalist in broadcast news working for NBC and FOX affiliate TV stations,  most recently as a news anchor in Cincinnati, USA. He has won two Emmy Awards and two Edward R. Murrow awards.  Through direct experience, Ben has come to believe that the mainstream American media is not interested in telling the truth. He has taken a stand and gone independent and online.

Michael LoftiMichael Lotfi  is a Persian/American political analyst and adviser living in Nashville, Tennessee where he works as the executive director for the Tenth Amendment Center (TN). Lotfi founded online news source  TheLibertyPaper.org and writes a column at The Washington Times called “American Millennial”. He graduated in the top 5% of his class with top honors from Belmont University in Nashville.

For more information, visit  Ben Swann | Truth In Media

 


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