Cliven Bundy’s Battle of Bunkerville: An Attorney’s Analysis

Nevada rancher Cliven Bundy made headlines recently when his decades-long battle with the federal government came to a head in an armed, but as-of-yet peaceful standoff near Bunkerville, Nevada. Although twenty years is a long time to have unresolved differences with arguably the most powerful entity in the world, the dispute between ranchers and the federal government reaches back much farther than two decades. In fact, the policies underlying the dispute are almost as old as this country.

So what is the dispute really about? Is Mr. Bundy wrong or right? Those are complicated questions that require centuries of legislative and common law history as a backdrop.

Timeline of the United States’ Governing Policies Regarding Public Land

Between the Land Ordinance of 1785 enacted by the Continental Congress and the Northwest Ordinance of 1787 passed by the Congress of the Confederation of the United States (both passed before any of the 13 colonies became states), the fledgling U.S. Government created the public domain (lands owned by the people and managed by the government). It also established the federal government’s ownership of all unsettled lands, disavowing all claims to the land individual colonies may have had.

The motivation behind these acts was largely financial—the new government needed funding and intended to sell the unclaimed lands to states as they formed. Such was the practice for much of the nineteenth century.

After secession of the confederate states in the Civil War era, Abraham Lincoln changed the dynamic for unsettled lands by signing into law the Homestead Act of 1862. This Act promoted the westward expansion of the United States by granting settlers ownership rights of up to 160 acres of federal land, free of cost. The General Land Office, a branch of the U.S. Department of the Interior, regulated the expansion and settlement of lands.

As settlers claimed public lands, these settlements grew into towns and cities, and eventually new states. In the late 1800s, Congress’ desire to expand westward gave way to a newer interest in retaining public ownership of some federal lands for the purpose of preserving them. Thus, Yellowstone became the first national park in 1872, and other national parks, forests, and wildlife refuges followed.

Congress soon found other (pecuniary) reasons to retain ownership of federal lands. Many of these federal lands were rich with resources, including minerals and pastures for grazing. Congress passed the Mineral Leasing Act of 1920, which put an end to the days when prospectors could freely mine and stake claims to mineral-rich public land. After 1920, prospectors had to seek permission to explore, drill, and extract minerals—a privileged for which they now had to pay.

Similarly, in 1934, the Taylor Grazing Act was passed, which established the U.S. Grazing Service, an agency that regulated grazing on public lands. Farmers whose animals grazed on public lands (which could be done freely prior to the act’s passage) had to pay a fee for a permit and then be subjected to the agency’s grazing parameters (which changed from time to time).

At this time, the disposition of federal lands was subject to competing policies. On the one hand the governmental interest in expansion allowed ranchers and miners quick and efficient ownership and use of public lands. On the other, the government was becoming more and more interested in preserving federal lands for parks, forests, wildlife refuges, and new sources of revenue. The latter interest began to eclipse the former, and the government’s willingness to give up federal land waned.

In 1946, the General Land Office and the Grazing Service merged and became the Bureau of Land Management. The BLM assumed the roles of both of these agencies.

In 1976, Congress passed the Federal Land Policy and Management Act, which formally ended the policy of transferring public lands to private owners and instituted the now-familiar policy of title to such land being retained by the federal government.

Thus, in the last 200+ years, the federal government’s policies regarding public land shifted from liberally deeding real property to pioneers willing to move westward and work the land to strictly maintaining government ownership. Even though its general policies have evolved, the U.S. Government has been consistent in its position that the federal government maintains the authority to determine the disposition and use of public land.

Timeline of Nevada’s Governing Policies Regarding Public Land

At the close of the Mexican American War on February 2, 1848, in conjunction with the Treaty of Guadalupe Hidalgo, Mexico ceded lands to the United States, including land that would become Nevada. Sixteen years later, in 1864, Congress passed the Nevada Enabling Act, which authorized the drafting of a Nevada constitution.

The Nevada Enabling Act made it a condition of statehood that Nevada “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.” Once the constitution was adopted with this language included, Abraham Lincoln admitted Nevada into the Union as a state. This occurred on October 31, 1864. As a result, the public lands retained by the federal government within Nevada’s borders constitute almost 87% of the land in Nevada.

In 1979, in response to the Federal Land Policy and Management Act of 1976, or FLPMA (the act abolishing private acquisition of public lands), Nevada passed its own statute, NRS 321.596. In this statute, Nevada claims ownership of the public lands within its borders based on two premises: (1) the states admitted to the Union both before and after Nevada acquired title to the unappropriated public land within their borders, and (2) according to the Northwest Ordinance of 1787, every new state to enter the Union would do so on “equal footing” with each of the other states. The Treaty of Guadalupe Hidalgo expressly affirmed the Equal Footing Doctrine.

In other words, after the 1976 FLPMA, Nevada and its citizens would apparently be forever precluded from acquiring ownership to federal land, so Nevada cried foul, claiming it was unfair that the other states got to acquire land at statehood, and in a legislative declaration, asserted its claim of ownership over much of the federal land within its borders (expressly excepting national parks, forests, refuges, and military lands).

There is surprisingly little case law interpreting the validity of NRS 321.596. The two published cases that do discuss it cast doubt both on its applicability and its constitutionality.

U.S. v. Nye County

The first case, issued in 1996, stemmed from a lawsuit between Nye County and the United States. Nye County passed a series of Resolutions claiming ownership over rights-of-way for roads crossing public lands, rejecting the authority of the U.S. government to manage public lands. In 1994, Nye County opened a canyon road through national forest land, and the U.S. government sued.

The United States District Court for the District of Nevada sought guidance from English common law (the laws of England from before the Revolutionary War, from which our judicial laws are derived) and hearkened back to the Thirteen Colonies’ post-Revolutionary-War rights to the lands owned by British royalty as a public trust. The court reasoned that the same principles governing the Thirteen Colonies’ acquisition of land from England when they became sovereign at the end of the American Revolution should apply to a new state’s acquisition of land from the federal government when a territory becomes a sovereign by being admitted to the Union as a state.

The district court drew what it considered a significant distinction between Nevada and the Thirteen Colonies. It concluded that unappropriated dry land (which is what Nevada was laying claim to in NRS
321.596) was historically treated differently than land submerged under navigable or tidal waters. It reasoned that only title to submerged land was passed to the original Colonies, whereas title to dry land was retained by its individual owners. Therefore, when Nevada became a state, the original owners of dry land—the U.S. Government—also retained title thereto.

The court also obliquely made reference to the fact that the State of Nevada had abandoned any claims it had made in NRS 321.596: “while Nevada has statutorily claimed the public lands within Nye County, it now concedes that this claim is constitutionally untenable.” However, the court did not clarify when or in what form Nevada made this concession, nor identify anyone authorized to make concessions on behalf of the state.

The U.S. won this case, and Nye County was forced to submit to the federal rules governing land in its county (93% of Nye County is owned by the U.S. Government).

U.S. v. Gardner

The second case discussing NRS 321.596, issued in 1997, involved Clifford Gardner, a cattle rancher. Gardner’s cattle were grazing on public lands in Nevada, and particularly, in the Humboldt National Forest. The Forest Service assessed fines totaling $4,473.72, but Gardner continued to allow his cattle to graze and refused to pay the fine. The United States sued. Gardner lost at the district court level and appealed to the Ninth Circuit. He made several arguments:

  1. Allowing his cattle to graze in the Humboldt National Forest without a permit is not trespass because Nevada, not the federal government, owned that land after Nevada became a state based on the Equal Footing Doctrine and NRS 321.596.
  2. Nevada’s promise, prior to becoming a state and included in theNevada Constitution, to forever disclaim right and title to the federal lands within its boundaries, was an invalid and unconstitutional attempt to divest Nevada of its lands.
  3. Federal ownership of public lands in Nevada violates the Tenth Amendment.
  4. The retention of unappropriated lands by the United States violates the Guarantee Clause of the Constitution, Equal Protection Clause, and fails the “political accountability test” of the Fifth Amendment.

The Ninth Circuit dispensed with each of these arguments in turn. Regarding the Equal Footing Doctrine, it drew the same distinction as did the district court in Nye County between dry land and land under water. It also clarified that the Equal Footing Doctrine only applies to political rights and sovereignty, not to economic or physical characteristics of the states.

In response to Gardner’s argument that Nevada reclaimed ownership of the lands in 1979 when it passed NRS 321.596, the court pointed to a section of the statute excepting national forests, so regardless of the validity of the statute, by its very terms it did not claim ownership over the land where Gardner’s cattle were grazing.

The Ninth Circuit correctly pointed out that Nevada’s disclaimer of federal lands prior to become a state was not invalid for divesting Nevada of title because Nevada never had title to the lands. The disclaimer was merely an acknowledgment that the lands belonged to the U.S. Government even though Nevada was being granted statehood.

Gardner’s Tenth Amendment argument was based on his belief that federal ownership of Nevada lands divests Nevada of its ability to exercise sovereignty over the land. But the Ninth Circuit disagreed, finding that the federal and state governments had concurrent jurisdiction over the land, and that the state was free to enforce its own laws for acts perpetrated on federal land.

The Ninth Circuit dispensed with his remaining claims for his failure to raise these issues before the appeal.

Thus, Gardner lost the appeal, and had to prevent his cattle from grazing in the Humboldt National Forest without a permit.

Cliven Bundy

Bundy’s situation is remarkably similar to Cliff Gardner’s, except that Bundy’s cattle were grazing on public land not designated as a national forest (though part of the land his cattle are alleged to have grazed on is part of the National Park Service).

Bundy’s story starts in 1877, when his family moved westward with the incentive of ownership of 160 acres of land offered by the federal government under the Homestead Act.

It was not until 1954, however, that the Bundy family began grazing their livestock on public lands, when they sought and received BLM permits allowing them to graze within the 154,000 acres that made up the Bunkerville Allotment.

This map was created by the U.S. Government and used as an exhibit at a deposition of Cliven Bundy. The area north of Lake Mead encircled in red is the “Bunkerville Allotment.” According to the U.S. Government, Bundy’s cattle have been grazing not only in the Bunkerville Allotment, but also in the “Grazing Area,” depicted with black diagonal lines.

In a letter from the BLM to Cliven Bundy dated January 20, 1993, the BLM notified Bundy that his permit would expire at the end of February 1993. In the letter, the BLM explained that he could fill out the enclosed renewal application, which would last for ten years, but which would impose some new grazing restrictions around areas where desert tortoises were spotted.

Believing that the “decision concerning the Desert Tortoise, if fully implemented, would lead to the end of ranching in Clark County,” Bundy, on February 26, 1993, two days before his grazing permit would expire, sent an Administrative Notice of Intent to the BLM. In this letter, Bundy expressed his intent to graze “pursuant to his vested grazing rights” rather than through any BLM permit process.

Bundy has not paid for any grazing rights since, but has nonetheless continued to allow his cattle to graze within the Bunkerville Allotment.

U.S. v. Bundy I

On March 27, 1998, after five years of soft disputes between Bundy and the BLM, the United States filed a complaint against Bundy seeking an order prohibiting the grazing of Bundy’s cattle on public land without a permit and for damages for trespass.

Bundy argued in opposition to a motion for summary judgment brought by the United States that the land in question did not belong to the United States, but to Nevada. The court relied on the decision and reasoning in Gardner and granted the motion for summary judgment, issuing an order precluding the grazing of Bundy’s cattle within the Bunkerville Allotment and awarding damages for trespass amounting to $200 per day per head of livestock still present on the Bunkerville Allotment after November 30, 1998.

Bundy appealed this decision to the Ninth Circuit Court, but the Court affirmed the district court’s decision in a curt 103-word opinion.

In 1999, after Bundy refused to obey the 1998 court order, the United States brought a motion to enforce the injunction, which was granted.

Also in 1998, with two small allotments forming the exception, all of the BLM lands within the Grazing Area were closed permanently to all livestock grazing.

U.S. v. Bundy II

In 2012, the United States again filed suit, this time to preclude Bundy’s use of the land within the Grazing Area (the prior order only applied to the smaller Bunkerville Allotment). The U.S. again file a motion for summary judgment, complaining that Bundy was illegally grazing his cattle and constructing range improvements within the Grazing Area (an area the U.S. referred to as the “New Trespass Area”).

In its motion, the U.S. also claimed that Bundy’s cattle (1) posed a threat to public safety for causing accidents and posing a threat to workers and visitors of the National Parks Service; (2) damaged natural and cultural resources including scenic values and various Endangered Species, including two fish species, one bird species, and the desert tortoise; and (3) adversely impacted natural resources by denuding rangelands and damaging archeological resources.

The U.S. also complained that it could not enforce its prior orders because the State of Nevada and the County Sheriff require an order authorizing the federal agencies to impound Bundy’s livestock before they will issue a brand inspection certificate, which the U.S. did not have. The U.S. admitted that it had the authority to round up the cattle, but without the inspection certificate, it could not get rid of the cattle because “no rancher will agree to purchase impounded livestock if there is no brand inspection certificate.”

Bundy opposed the motion, denying that his cattle presented a danger and making the same arguments made by Gardner about the actual ownership of public land, including Nevada’s declaration of ownership found in NRS 321.596.

On July 9, 2013, the district court, relying on the prior 1998 decision and the opinion issued in Gardner, granted the motion for summary judgment and issued an injunction requiring Bundy to remove his cattle within 45 days of the order.

Bundy appealed, but the appeal was dismissed on January 30, 2014 because Bundy never filed his appellate brief.

The federal government’s subsequent roundup of Bundy’s cattle, and Bundy’s unwavering commitment to his cause—this time joined by hundreds of armed supporters from across this country—brought this story to the forefront of the public’s attention.

Are Cliven Bundy’s Actions Justified?

What is it about a rural Nevada rancher that has caught the public’s attention and spurred such passionate responses from both sides of the political aisle? Why are citizens, quite literally, up in arms?

There is no question that Bundy’s actions are illegal. Although in the various court papers Bundy has prepared and filed, he attempted to justify his behavior with citation to the law, he has also—at least tacitly—acknowledged the illegality of his actions. In at least one brief he penned, he referred to himself as having taken “a civil disobedient stand.”

And that’s exactly what we’re left with after distilling the whole affair down to its most basic form: Cliven Bundy is dissatisfied with the growth of the federal government and is voicing his dissatisfaction through civil disobedience.

Those against a growing federal government likely view Cliven Bundy’s stand as analogous to Mohandas Gandhi’s decades-long fight against excessive land tax and discrimination in India, or Martin Luther King Jr.’s civil disobedience to fight segregation and economic injustice during the Civil Rights movement. (Some may take offense at the comparison between civil rights and federalism, and though they are certainly different causes, using disobedience as a means to express dissatisfaction of the law is a common element.)

In fact, in 1963, Dr. King was arrested and jailed for violating a court order and injunction against, among other things, trespassing. In a famous open letter he drafted from the Birmingham Jail, Dr. King wrote, “[o]ne has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”

Bundy and his supporters have expressed dissatisfaction with the growth of the federal government, and this disillusionment is likely at the core of their motivations. Most of them probably do not understand that Bundy’s actions are illegal, but nonetheless see Bundy’s firm stance against big government as a clarion call, to which proponents of small government have responded.

Unlike Dr. King, Bundy has not yet had to face the full consequences of his disregard for the laws, but whatever happens, even though the two-day armed standoff is over, this story has not yet seen its end.

To make legal inquiries, call attorney Zachariah B. Parry at 702-879-9555.


  • 1998 Order Granting Motion for Summary Judgment in U.S. v. Cliven Bundy I
  • 2012 Complaint against Cliven Bundy in U.S. v. Cliven Bundy II
  • 2012 U.S. Motion for Summary Judgment in U.S. v. Cliven Bundy II
  • 2013 Cliven Bundy Opposition to Motion for Summary Judgment in U.S. v. Cliven Bundy II
  • 2013 Order Granting Motion for Summary Judgment in U.S. v. Cliven Bundy II
  • 2013 U.S. Motion to Enforce Injunction in U.S. v. Cliven Bundy I
  • 2013 Cliven Bundy Objection to Motion to Enforce Judgment in U.S. v. Cliven Bundy I
  • 2013 Cliven Bundy Order Granting Motion to Enforce Injunction in U.S. v. Cliven Bundy I
  • 2014 9th Circuit Order Dismissing Appeal in U.S. v. Cliven Bundy II
  • United States v. Nye Cnty., Nev., 920 F. Supp. 1108 (D. Nev. 1996)
  • United States v. Gardner, 107 F.3d 1314 (9th Cir. 1997)
  • NRS 321.596
  • Nevada Constitution
  • Guarantee Clause of the U.S. Constitution
  • Equal Protection Clause of the U.S. Constitution
  • Fifth Amendment of the U.S. Constitution
  • Tenth Amendment of the U.S. Constitution
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