Court Puts Down Rebellion Over Control of Federal Land

by TIMOTHY EGAN
Published: March 16, 1996

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Dealing a major blow to dozens of counties that have passed ordinances asserting that the Federal Government does not in fact own the public lands that make up nearly half of the American West, a Federal judge in Nevada has ruled that such measures are illegal.

The ruling on Thursday night by Judge Lloyd D. George of Federal District Court in Las Vegas knocks out the legal basis for a number of county ordinances that have been used to disregard Federal law and, in some cases, intimidate Federal employees.

The ordinances are at the heart of a rural revolt sometimes referred to as Sagebrush Rebellion II. Nearly two years ago, Richard Carver, a commissioner in Nye County, Nev., took a bulldozer to a Forest Service road, declaring that the county's newly passed ordinance meant the Government no longer owned the property. He was cheered on about 50 armed supporters, and he later threatened to arrest a Forest Service ranger who tried to stop him.

The Justice Department, comparing the situation to a rebellion of Southern counties against Federal civil rights laws in the late 1960's, sued Nye County one year ago. A number of rangers who work for the Forest Service, the Bureau of Land Management and the National Park Service had asked for legal help, saying the county ordinances had made it impossible for them to do their jobs.

About 35 counties across the West have passed ordinances proclaiming their control over Federal land.

"The United States has a multi step strategy for dealing with threats and with these county ordinances," said Mike Coppelman, the Deputy Assistant United States Attorney General who handled the case, "and the first step was to knock out the legal basis" for such measures.

Mr. Coppelman called Judge George's ruling "a sweeping and total vindication of the right of the United States to own and manage Federal lands for all Americans."

The Nye County case was a rallying cry for some conservatives, who raised money and provided legal help to the county. Roger Marzulla, a Washington lawyer who was an Assistant Attorney General in the Reagan Administration, argued the case for Nye County. Mr. Marzulla said the lawsuit accomplished one goal in forcing Federal agencies to work more closely with the counties.

Evoking a decision by President Abraham Lincoln and terms of an 1846 treaty in which Mexico gave the Southwest to the United States, Judge George said there was a long legal history of American Government ownership of the public domain. As a condition of statehood for Nevada in 1864, land not specifically claimed by Nevada went to the Federal Government, he wrote. Nearly 87 percent of Nevada is under Federal control.

"It is declared that, as set forth in this decision, the United States owns and has the power and authority to manage and administer the unappropriated public lands and National Forest System lands within Nye County, Nev.," Judge George wrote.

The judge rebuked nearly every one of the larger issues brought by Nye County's lawyers.

In the first Sagebrush Rebellion in 1979, the State of Nevada had asserted that it owned the Federal land within its borders. This time, the state refused to back Nye County.

Mr. Carver, who has spent much of the last two years helping other Western counties follow Nye County's lead, said he was not disappointed by the ruling.

"We made our point," he said. "We got what we wanted. We had to take an aggressive stance in order to get our seat at the table. We did that. And now, they are listening to us."

Several Forest Service employees have filed lawsuits of the their own, saying the county ordinances were being used to harass them. While counties like Nye did not actually annex the land, they claimed that the Federal Government had no right to control and manage its use.

Today, a group representing Federal employees said the Government should take more action to protect workers in the rebellious counties.

"While this case is a good and modest first step, in our view the underlying problem of intimidation and threats to Forest Service employees has not been addressed," said Jeff Ruch, counsel for Public Employees for Environmental Responsibility, which represents hundreds of Federal rangers and scientists. "There was no mystery to begin with. This land was always Federal land."

In Nevada, Idaho, New Mexico and elsewhere, some ranchers have cited ordinances like Nye County's as a basis to refuse to pay grazing fees, or to run cattle on land that is considered environmentally sensitive. Some miners have taken similar positions. In Elko, Nev., the Nye County idea was taken a step further last month, when a group of citizens said it planned to convene a grand jury to try Forest Service officials for enforcing Federal law.

"There is no such thing as a United States Forest Service," Mr. Carver had declared after Nye County passed an ordinance asserting its right to control Federal land in the vast, arid county in central Nevada.

"This stuff has scared the hell out of me," said Jim Nelson, the supervisor of the Toiyabe National Forest in Nevada, which covers Nye County.

Mr. Nelson said the county supremacy ordinances were a cover by mining, ranching and logging groups that did not want to comply with tough environmental standards of Federal agencies.

"You've got a small group of people who have been exploited by some corporate interests," he said.

There have been two bomb blasts directed at Forest Service employees and buildings in Nevada in the last year. Another explosion tore apart a Bureau of Land Management office in Nevada. Senator Harry Reid, Democrat of Nevada, attributed the explosions to the "underbelly" of the county supremacy movement. No one has been arrested in the blasts, which caused property damage but no injuries.

Mr. Carver, whose rebel stance brought him wide publicity, said his actions were not so much about protecting corporate mining and ranching interests as they were about enforcing the original intent of the Constitution. He said there was no basis for the Forest Service or any other land management agency in the Constitution.

Top Federal officials took a conciliatory stance after the ruling, saying it was time to bring the warring factions together. "Public lands are owned by all Americans, to be managed by the United States -- that's the rule of law," said Attorney General Janet Reno. "The court made it clear that Nye and other counties are no exception to this rule. Now it's time to come together and address our differences."

Michael Dombeck, director of the Bureau of Land Management, said, "Now we can look forward to continuing and rebuilding positive relations with constituents across the West. It's time to find common ground."

Both Mr. Carver and Mr. Marzulla said that while they might have lost the legal issues, their fight had led to Federal agencies' being more cooperative with the counties.