[Note: The Bundy band represents both an existential threat and an existential opportunity for America’s public lands. This is the third of four Public Lands Blog posts that examine the government mishandling of the Bundys, the Bundys’ legal troubles, the Bundys’ legal troublemaking, and the opportunities for the conservation community to apply political jujitsu on Bundy et al. to advance the conservation of America’s public lands.]
Fresh on the heels of the dismissal of federal charges, Cliven Bundy has filed a new lawsuit against the federal government. The suit was filed on January 25, 2018, in the eighth judicial district in and for Clark County, Nevada. It names as defendants the State of Nevada, Clark County in that state, ten Does, and ten Roe Corporations (unnamed individuals and corporate defendants, respectively, that may be named later). The fifteen-page complaint is a masterpiece of cherry-picking, misrepresentation, omission, and denial that tries to connect legal dots that do not connect and often are not actually legal dots at all.
The complaint explains that Cliven D. Bundy is a rancher who raises livestock on “approximately 160 acres of privately owned land, and upon approximately 300,000 acres of unclaimed land belonging to the People of Nevada and Clark County.” The complaint goes on to say that Bundy “co-owns all the unclaimed land (public lands), along with all the People of Nevada and Clark County equally.” The rest of us know this ~300,000 acres as federal public lands under the jurisdiction of the Bureau of Land Management and now mostly administered as Gold Butte National Monument.
The complaint boils down to the contention that constitutionally the United States cannot hold property save for very specific and limited purposes, and certainly not what we know and love as the federal public lands. One can come to such a conclusion only by misconstruing one clause of the Constitution and completely ignoring another. I have previously examined this cockamamie legal theory in a Public Lands Blog post entitled The Constitutionality of Federal Public Lands. Here I will look more closely at Bundy’s questionable process and reasoning.
Bundy’s Questionable Legal Process and Counsel
Most suits against the federal government are brought before a U.S. district court judge (like the one who dismissed the federal charges against Bundy and some of his band) or the U.S. Court of Claims (designed to address financial claims against the United States). But Bundy generally has problems with the legitimacy of the federal government, especially when it comes to federal public lands, even though he carries with him a pocket copy of the United States Constitution. The complaint was brought in state court because Bundy has no faith in (or does not recognize the legitimacy of) the federal courts.
The legal “brains” behind the case is Larry Klayman, a serial litigator who has sued, among others, Bill Clinton (dozens of times), Dick Cheney, Barack Obama, OPEC, Iran, the National Security Agency, Mark Zuckerberg, Louis Farrakhan, Al Sharpton, Black Lives Matter founders, Hillary Clinton, George Soros, the American Conservative Union, some members of Congress, the Republican National Committee, the American Civil Liberties Union, Robert Mueller, Esquire, Rachel Maddow, Fidel Castro, Johnson & Johnson, UC Berkeley, Judicial Watch (which he had earlier founded), the Bureau of Alcohol, Tobacco, Firearms and Explosives and his own mother. Many of the cases were dismissed by a judge or voluntarily withdrawn. He’s won a few, which certainly could be explained by random chance.
Klayman sought to represent Cliven Bundy in his criminal trial, but federal district court judge Gloria Navarro found that his application to represent Bundy was “misleading and incomplete” because it was not candid about three disciplinary proceedings against Klayman in the District of Columbia and about his being barred from the courtrooms of two federal judges in Florida.
Bundy’s Questionable Legal Reasoning
The complaint contends that all federal public lands are in fact owned by the states—in Bundy’s case, the State of Nevada and its political subdivision Clark County. The complaint alleges that “the legislature of Nevada has never consented to allow the U.S. Government to own at least 85% of the land within Nevada’s borders.” Apparently, Cliven doesn’t carry in his other pointy-flapped snap-buttoned pocket a pocket copy of the Nevada Constitution, which says:
In obedience to the requirements of an act of the Congress of the United States, approved March twenty-first, A.D. eighteen hundred and sixty-four, to enable the people of Nevada to form a constitution and state government, this convention, elected and convened in obedience to said enabling act, do ordain as follows, and this ordinance shall be irrevocable, without the consent of the United States and the people of the State of Nevada:
. . .
Third. That the people inhabiting said territory do agree and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.
The adoption of its constitution was the first official act of the State of Nevada. My Public Lands Blog post entitled Statehood and Federal Public Lands: A Deal Is a Deal examines the covenant of statehood and the federal public lands.
In paragraph 35, the complaint lapses into this unintelligible peeve:
Further the federal government failed, at all material times, to inform Bundy that the (common-law) common of pasture rights regarding use of the public land by adjoining property owners with long standing rights promulgated in 43 C.F.R. §4130.5 provides further details:
“A free-use grazing permit shall be issued to any applicant whose residence is adjacent to public lands within grazing districts and who needs these public lands to support those domestic livestock owned by the applicant.”
I attribute the grammatical nonsense of this paragraph to hasty drafting (everyone needs an editor). Most important, the period after “applicant” should actually be an ellipsis (a mark indicating an omission from a quoted passage). Referring to my pocket copy of the BLM grazing regulations, I find that the quoted sentence continues, “whose products or work are used directly and exclusively by the applicant and his family.” The complaint states that Bundy is a “rancher who raises livestock numbering at various times around 1,000 head of cattle.” Even Bundy’s supersized Mormon family on a beef-only diet couldn’t “directly and exclusively” use that much beef, let alone the beef by-products manufactured from his cattle’s bones, horns, hooves, fats, fatty acids, hide, hair, intestines, and/or manure.
Bundy’s complaint speaks often of “grazing rights.” There is no right to graze livestock on federal public lands, as found numerous times by numerous courts and documented in my Public Lands Blog A Federal Public Lands Grazing “Right”: No Such Animal.
Bundy’s Quasi-Mormon, Radical Libertarian Dogma
If the Bundys would only read (and heed) this Public Lands Blog, it would save them a lot of time and trouble. Alas, the Bundys rely instead on a two-hundred-page document named The Nay Book after the late Keith Nay, a rancher neighbor of Cliven Bundy’s who cherry-picked Mormon scripture, the writing and speaking of Mormon leaders, the US Constitution, and other sources to create a justification of fringe views on the Constitution and the US federal public lands.
An article in the Washington Post quotes Henderson State University history professor Matthew Bowman, author of The Mormon People: The Making of an American Faith, as saying that The Nay Book “absolutely represents a fringe ideology within the church” and not what the mainstream church teaches. “They are the kinds of ideas that can be held by people in dangerous confrontations with authorities, as we saw at Ruby Ridge, at Waco, at Bundy Ranch.” In the same article, the University of Virginia’s Kathleen Flake, a professor of Mormon studies, calls the booklet an example of “radical libertarian dogma.”
What Should the State Judge Do?
Many of the same claims made by Bundy in this case were brought in 1996 in another federal case by another Nevada livestock operator using federal public lands. In this case, such claims were found without merit by the US Ninth Circuit Court of Appeals in February 1997. The Bundy complaint alleges this federal case was wrongly decided and should be overturned by the state judge.
The state judge should toss the case for her lack of jurisdiction and sanction Bundy’s legal counsel for bringing a frivolous lawsuit. In the end, it comes down to the rule of law.
One cannot argue with crazy, but one can use crazies to one’s advantage. That’s the subject of my next Public Lands Blog post.