Comments by "Scott Farner" (@scottfarner5100) on "Rep. Walden on the Oregon standoff" video.
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+Mark H
Keep in mind his biggest complaint is that the BLM was suppose to erect a fence to keep cattle off this pieces of land that was determined to be cow free. But, instead according to Walden went after ranchers
to build it. What reason would the BLM have for not building the fence themselves? Then Walden says he restated it in the appropriations bill, did the funding for that fence go away or was the BLM really just going out of their
way to screw with ranchers. Ahh found thisSEC. 101. DESIGNATION OF STEENS MOUNTAIN COOPERATIVE
MANAGEMENT AND PROTECTION AREA.
(a)DESIGNATION.—The Secretary shall designate
the Steens Mountain Cooperative Management and Protection Area consistingofapproximately 425,550 acres of Federal land located in HarneyCounty, Oregon, in the vicinity of Steens Mountain, as generallydepicted on the map entitled ‘‘Steens Mountain Boundary Map’’and dated September 18, 2000.(b)CONTENTS OF MAP.—In addition to the general
boundaries of the Cooperative Management and Protection Area, the mapreferred to in subsection (a) also depicts the general boundariesof the following:(1)The no livestock grazing area described in section 113(e).CANCELLATION OF CERTAIN PERMITS.—The Secretaryshall cancel that portion of the permitted grazing on Federallands in the Fish Creek/Big Indian, East Ridge, and SouthSteens allotments located within the area designated as the‘‘no livestock grazing area’’ on the map referred to in section101(a).Upon cancellation, future grazing use in that designatedarea is prohibited. The Secretary shall be responsible forinstalling and maintaining any fencing required for resourceprotection within the designated no livestock grazing area.allotment to Lowther (Clemens) Ranch.
(4)FENCING AND WATER SYSTEMS.—The Secretary shallalso construct fencing and develop water systems as necessaryto allow reasonable and efficient livestock use of the forageresourcesreferred to in paragraph (3). The law he was speaking of created a 12 member Advisory council with a secretary of
the council who is named in the legislation was to build the fence, and he
blames the BLM. you should read the law they wrote I think Walden is playing
the people of Harney County. Steens Mountain Advisory Council FINAL June 11-12, 2015 Summary MinutesLitigation update – The settlement agreement
with Mr. Stroemple is completed. It had a June 1st effective date. The BLM is
working on an EA analyzing building fencing. Among the alternatives to consider
are building the fence entirely in wilderness or building it on the boundary
line (and other alternatives). Also, they are analyzing materials and methods
of getting materials to the site. The BLM paid Mr. Stroemple some money, as
well. It’s up to him to keep his cows on private land. BLM will also check
periodically. We will not herd them but will let him know if they are on the No
Livestock Grazing Area (NLGA) public lands and need to be returned to his
private lands. As we’ve said all along, Mr. Stroemple has the right to graze
his private land. A SMAC member asked how long analysis will take and when would BLM be building the fence. Rhonda replied
that it’s a priority but the analysis is currently in review in the solicitor’s office. There might be a decision on the EA in a year. It could be appealed; then it would be 2–3 years to go through IBLA. Even if the fence is on private
land, effects to wilderness values have to be analyzed (sights, sounds, etc.).
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What part of the word “retention” do you not understand? I don’t have the time to explain this so here is the cut and paste for your reading pleasure.
Constitutional Basis
for Federal Land Ownership:The Property Clause
The U.S. Constitution addresses the relationship of the federal government to lands. The Property Clause, Article IV, § 3, Clause 2, gives Congress authority over the lands, territories, or other property of the United States. It reads:
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.
This provision provides broad authority for Congress to govern the lands acquired by the federal government as it sees fit, and to exercise exclusive authority to decide on whether or not to dispose of those lands. The U.S. Supreme Court has described this power as “without limitation,” stating that:
while Congress can acquire exclusive or partial jurisdiction over lands within a State by the State’s consent or cession, the presence or absence of such jurisdiction has nothing to do with Congress’ powers under the Property Clause. Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause....
And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.4
One authoritativecommentary noted that:No appropriation of public lands may be made for any purpose except by authority of Congress.... Congress may limit the disposition of the public domain to a manner consistent with its views of public policy.... It [the Property Clause] empowers Congress to act as both proprietor and legislature over the
public domain; Congress has complete power to make those “needful rules” which in its discretion it determines are necessary. When Congress acts with respect to those lands covered by the [Property] clause, its legislation overrides conflicting state laws. Absent action by Congress, however, states may in some instances exercise some jurisdiction over activities on federal lands.5
3 (...continued)
without intervening federal ownership.
4 Kleppe v. New Mexico, 426 U.S. 529, 542-543 (1976).
5 CRS, “Article IV, Section 3, Clause 2 Analysis,” United States Constitution: Analysis and Interpretation, footnotes omitted, at
[http://www.crs.gov/products/conan/Article04/topic_
Thus, it is accepted law that the federal government may own and hold property as Congress directs.6 Issues such as whether some or all of the
remaining federal lands should be retained or divested, how to dispose of lands, or whether to acquire additional federal lands, appear to be policy questions for Congress.
The Equal Footing Doctrine. The equal footing doctrine is based on Article IV, § 3, Clause 1 of the Constitution. That clause addresses how new states will be admitted.7 The doctrine means that “equality of constitutional right and power is the condition of all States of the Union, old and new.”8 It does not mean that physical or economic situations among states must be the same.9 The term comes from state enabling acts that included the phrase that the state was admitted “into the Union on an equal Footing with the original States.”10 The U.S. Supreme Court has clarified what those rights are.
In the context of land, the equal footing doctrine has been held to mean that states have the authority over the beds of navigable waterways. Some have argued that the equal footing doctrine prohibits permanent federal land ownership. This is contrary to the plain wording of the Constitution. The doctrine and some language within the U.S. Supreme Court case of Pollard’s Lessee v. Hagan11 have been combined to provide an argument that the federal government held the lands ceded by the original states
only temporarily pending their disposal. However, this theory has been rejected by other Supreme Court cases. Furthermore, in Pollard’s Lessee v. Hagan, the Supreme Court ruled on the narrow issue of federal ownership of submerged lands beneath navigable waterways, finding those lands belonged to the state under the equal footing doctrine because the original states had kept ownership of the shores of navigable waters and the soils under them.12
5 (...continued)S3_C2_1_2.html].
6 See United States v. Gratiot, 39 U.S. (14 Pet.) 526 (1840); Camfield v. United States, 167 U.S. 518 (1897); Kleppe v. New Mexico, 426 U.S. 529 (1976); and Nevada v. United States, 512 F. Supp. 166 (D. Nev. 1981), aff’d on other grounds, 699 F.
2d 486 (9th Cir. 1983).
7 The clause reads: “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”
8 Escanaba v. City of Chicago, 107 U.S. 678, 689 (1883).
9 United States v. Texas, 339 U.S. 707, 716 (1950), reh’g denied, 340 U.S. 907 (1950).
10 See, e.g., Nevada Enabling Act, 13 Stat. 30 (1863-1864).
11 44 U.S. (3 How.) 21 (1845).
12 See CRS, “Article IV, Section 3, Clause 1 Analysis,” United States Constitution: Analysis and Interpretation, footnotes omitted, at [http://www.crs.gov/products/conan/Article04/topic_S3_C1_1_2.html]. The contrary position was premised on dicta (extraneous discussion on which the court did not rely for its decision) from the
case indicating that the federal government held the lands ceded by the original states only temporarily pending their disposal.
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