An open letter to anyone seeking my vote for an elective office created by the Constitution of the State of Nevada
Dear office seeker: I am a registered Republican who will be voting in all upcoming primary and general elections. I am a political conservative who has rarely if ever voted for the Democratic candidate for any office. I support western land reform, including allowing more Nevada land to pass into the hands of private ownership. I also support cattle ranching, and believe the Federal Government’s need to balance environmental concerns with the economic needs of the ranchers has, for many years now, been out of balance, and that cattle ranchers have been subjected to overly onerous, harsh, and arbitrary regulations and permitting conditions.
However, I also support the rule of law, and not the mob, and do not want to see the Constitutional form of government by the people, for the people, of the people, which I was bequeathed by George Washington and James Madison and Alexander Hamilton replaced with a government by the most powerful demagogues with the most guns, for the most powerful demagogues with the most guns. I do not believe that my own personal political and policy preferences with respect to the causes of western land reform (upon which reasonable minds can disagree without raising issues of fundamental human rights or morality) are so compelling as to justify even civil disobedience (let alone violent or armed resistance) to existing law. I also do not believe that these causes are well served by those who feel they have the right to take the law into their own hands, or who believe they may live their lives as though they were above the law or beyond its scope and reach. Rather, I support the Nevada Constitution, which protects my rights, as John Adams put it, to live in a republic "of laws and not of men."
I am proud of my Republican party's Lincoln legacy, as the party that preserved the Union and ended
legalized slavery. The office you are seeking requires you to swear an oath to “support, protect and defend the Constitution and Government of the United States, and the Constitution and government of the State of Nevada, against all enemies, whether domestic or foreign, and that I will bear true faith, allegiance and loyalty to the same . . .” NRS 282.020. The Constitution of the State of Nevada which you will swear to uphold was written during the Civil War, and was designed to ensure that the claims of would-be secessionists would not be recognized in this State. It provides, in pertinent part, as follows:
“[T]he Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State . . . to . . . perform any act tending to impair[,] subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and perpetuate its existence, and whensoever any . . . people . . . attempt to . . . forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.”
In recent weeks, an unregulated and unauthorized group of citizens of Nevada and other states have collected themselves within Clark County, Nevada, some of whom purport to be members of one or more “militia[s]”. However, none of these persons are, with respect to the events described in this letter, acting under the authority of a lawful militia “licensed by the Governor” as required by Nevada Revised Statutes 412.026. Rather, they are in my opinion instead acting in violation of Nevada criminal law, NRS 203.080, which makes it unlawful for “any body of individuals” who are not acting under proper statutory authority, “to associate themselves together as a military company with arms without the consent of the Governor.”
These individuals and other supporters have recently engaged in conduct within the State of Nevada which violates and thwarts the principles of the Nevada Constitution which I quoted above. In contravention of that Constitution, they have taken up arms to “forcibly resist the Execution of [the Federal government’s] laws” by armed officers of that government, and they have engaged in other acts “to impair, subvert, or resist the Supreme Authority of the government of the United States.”
They engaged in this conduct in order to support a man named Cliven Bundy, who had, prior to 1993, previously held an ephemeral grazing permit (issued with respect to land that does not consistently contain enough forage to sustain livestock) to graze his cattle on public land owned by the U.S. Government, which lies near his private ranch property. Permission to graze cattle on public land is a privilege, not a right, which may be revoked at the discretion of the government. Light v. United States, 220 U.S. 523, 535 (U.S. Supreme Court 1911)(grazing permits on federally owned land do not confer vested rights). This land had been held by the U.S. Government since 1848, when it was acquired as part of the property ceded to the United States by Mexico pursuant to the Treaty of Guadalupe Hidalgo, and the U.S. Government’s rights to control, allow or not allow, limit or extend, grazing on this U.S. Property has been repeatedly recognized. Mr. Bundy declined to sign a new permit in 1993, because he objected to the landowner’s permit terms. Nevertheless, Mr. Bundy’s cattle remained on the property, although he then also ceased paying any grazing fees. This put him in essentially the same position as anyone else who leases property rights from a property’s owner, but who stays in possession after his lease has expired without paying any further rent: He was a holdover squatter trespassing on land he did not own and did not have any right to possess.
Based thereon, Mr. Bundy was ordered in 1998, and, again, in 1999, by Judges of the U.S. District Court for the District of Nevada (whose powers derive from Article 3 of the U.S. Constitution which your oath of office will also require you to uphold) to remove livestock from property “owned by the United States and administered by the Department of the Interior through the Bureau of Land Management and the National Park Service” upon which Mr. Bundy had been found to have no lawful authority, at the time the orders were issued, to be grazing his cattle. Mr. Bundy did not obey these orders. Indeed, beginning in 2000, Mr. Bundy began allowing his cattle to graze on land for which he had never held any permit. Based thereon, in 2013, Mr. Bundy was again ordered to remove his trespassing cattle from federally owned property.
Mr. Bundy admits he has never obeyed any of these three Orders and he also admits having disobeyed orders requiring him to pay fines and penalties as a result of this disobedience. However, he excuses his conduct because he states that he does not recognize the United States Government as even existing (a statement he made in an interview on the Dana Loesch radio program), and on the basis of other legal arguments of a similarly frivolous nature which he has raised in Court filings and which have been repeatedly rejected. For example, Mr. Bundy claims the jurisdiction of the U.S. Courts is fictional, and that the“Sovereign” State of Nevada actually owns the land on which he has been trespassing, even though numerous legal authorities have held otherwise, based on the language of the Treaty of Guadalupe Hidalogo, and other relevant law, including the Nevada Constitution, which expressly indicates to the contrary.
Mr. Bundy's assertions that he does not recognize the U.S. Government as even existing, and his arguments that Nevada is its own sovereign state, all seem to indicate that Mr. Bundy has adopted the legal theories believed in by members of the so-called "sovereign citizens" movement, or other similar "sovereignty" legal theories derived from this movement. For example, according to Court filings, Mr. Bundy has made threats to "sue" federal employees he has encountered on federal property which he claimed to be his land. Filing such lawsuits, or threats to file such suits, against government employees, are a common practice among members of the sovereign citizens movement, and Mr. Bundy's assertion of State sovereignty, and refusal to recognize the existence and legitimacy of the U.S. Government are also common themes within this movement.
The sovereign citizen movement has been identified by the FBI as an extremist organization, some of whose members may be considered to be dangerous domestic terrorists.
http://www.fbi.gov/news/stories/2010/april/sovereigncitizens_041310
The legal theories advanced by advocates of "sovereignty" theory have been criticized by legal scholar Dallin H. Oaks, a former University of Chicago law professor, former Utah State Supreme Court Justice, former President of Brigham Young University, and current Apostle of the Church of Jesus Christ of Latter-day Saints (a religion to which Mr. Bundy happens to belong, although he has not, apparently, become very conversant with his religion's leaders' take on his unique political ideas). Mr. Oaks has thoroughly analyzed the various arguments made by earlier generations of "sovereignty" theorists, found them to be wholly without merit and bogus, and concluded as follows with respect to those who would rely on such theories as grounds for violating federal court orders and laws:
"I feel sad that persons can be so misled. The wise will beware of teachings on the Constitution that are based on peephole history and selective readings of historic documents. They should also beware of the related advice of persons who advocate private armies or the collection of heavy weapons or extraordinary quantities of private arms. Responsible citizenship has no shortcuts when the going gets tough--not draft avoidance, not tax evasion and not eccentric theories that purport to free us from the obligation to be subject to the constitutions and laws of our states and our nation." Dallin H. Oaks "Some Responsibilities of Citizenship" America's Freedom Festival, Provo Utah, July 3, 1994.
Throughout 2011, Mr. Bundy refused numerous offers to meet with BLM agents and other government officials to resolve the impasse between himself and the Federal Government. In April 2012, Mr. Bundy declined an offer to resolve the matter by having him cooperate with an effort to impound his trespassing cattle by shipping them to a facility of his choice and provide him with the proceeds from the sale.
Because of Mr. Bundy’s failures to comply with the lawful injunction orders for the removal of his cattle, the third of these U.S. District Court Orders authorized government agents to seize and remove and impound Mr. Bundy’s trespassing cattle, and further ordered that Mr. Bundy “shall not physically interfere with any seizure or impoundment operation” so authorized. Contrary to claims by some of Mr. Bundy’s supporters that any operations so authorized amounted to “stealing” Mr. Bundy’s cattle, the BLM obtained the impoundment order, rather than simply acting on its own authority, before engaging in the impoundment operations, in order to expressly comply with Nevada law, NRS 565.125, which allows impounded cattle to be resold with the proper brand inspection clearance certificates, only if a Court Order for impoundment has preceded the seizure. Legally, under the supremacy clause of the U.S. Constitution and federal legal preemption doctrines, this was not necessary. Nevertheless, the BLM engaged in this step in order to cooperate with the reasonable requests of local authorities, and cooperatively defer to their practical needs and requests. Thus, the U.S. Government showed far more deference to Nevada law in this matter than did Mr. Bundy. Mr. Bundy was provided prior notice, as required by the court, of the government’s intention to undertake the operations authorized by this order. Instead of utilizing the notice period to attempt to cure his unlawful squatting and trespass upon federally owned real property on which he has no recognized grazing rights, or to otherwise resolve or cure the situation, Mr. Bundy, according to news reports declared a “range war” and called upon State officials to come to his aid against the federal government’s operations, which would have required those officials to violate the provisions of the Nevada Constitution quoted above. This was consistent with earlier statements which Mr. Bundy had made, under oath, in the litigation leading to the aforestated orders, in which Mr. Bundy had testified that he would do “whatever it takes” to physically resist any legal officers’ actions to remove his cattle from land he did not own, in an effort to “physically stop” such conduct and that he would call upon and solicit “the assistance of neighbors, friends, family” and other “supporters” to do so.
Under the authority of a U.S. District Court's lawful order, armed agents of the United States therefore sought to carry out impoundment operations. While some of their conduct in carrying out these operations have been criticized as overly intense, Mr. Bundy’s indications of an intent to resist and create a “range war” would seem to be a likely source for the armed nature of the government’s operations. Mr. Bundy’s supporters were, for example, asked to limit any protest actions to a specified First Amendment area, in an apparent attempt to prevent his friends and supporters from physically interfering with the Government removal operations, as Mr. Bundy had sworn under oath he would solicit them to do. I will not comment here on whether this request was a Constitutionally appropriate time, manner, and place restriction on Mr. Bundy’s supporters, in light of the circumstances and Mr. Bundy's promises in sworn testimony of what he would ask his supporters to do, but I will note that many of his supporters gave support which went beyond speech, by, for example, throwing themselves or their ATV’s in front of vehicles which were involved in the operation, in order to prevent those vehicles from accessing roadways. The events which followed were highly publicized and Mr. Bundy soon found himself surrounded by and perhaps in putative control of armed supporters, including those claiming to be operating as a militia. Mr. Bundy’s armed supporters resisted the completion of the government’s operations, thereby violating the Nevada Constitution and its express recognition that “the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people . . . to . . . perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States.”
Mr. Bundy’s supporters have been successful in carrying out the goals of their unlawful enterprise to thwart the U.S. Government from carrying out U.S. Court Orders on real property owned by the U.S. Government, and in their armed resistance (in violation of the Nevada Constitution) to the lawful conduct of the federal agents who were seeking to enforce court orders of a country whose existence Mr. Bundy does not recognize. More specifically, due to the conduct of certain of Mr. Bundy’s supporters in facing down enforcement agents, the federal authorities withdrew to avoid the possibility of violence erupting over the situation.
Mr. Bundy and his supporters have remained in place, such that, as of this writing, a little corner of my State is under the de facto political control of Mr. Bundy and his private outlaw militia, rather than being controlled by the lawful government in whose jurisdiction this territory rightfully belongs, including with respect to property not only under the jurisdiction of, but legally owned by, the U.S. Government. In a little portion of my beloved State of Nevada, the rule of law has been replaced with the rule of anarchy and mob rule.
Dear candidate, the more I have thought about these events, the more these events have sickened me. I have deep roots in Southern Nevada. I was born and raised here in Southern Nevada. My maternal ancestors are buried in Bunkerville, Nevada. My paternal grandfather was instrumental in creating the Las Vegas Convention Center. My parents and my wife’s parents both attended Las Vegas High School in the 1940s, and my wife and I both received our K-12 education here in Southern Nevada. I am a practicing Nevada attorney and my first job after Law School was to work in Carson City as a Law Clerk to a Justice of the Nevada Supreme Court, where I was privileged to work on cases involving the application of the Nevada Constitution to cases and controversies of our State’s good citizens. I love, honor, and cherish the Nevada Constitution.
I do not wish to live in a third-world mobocracy, where local warlords or drug cartels or their ilk, together with their private armies, have authority over territory which should properly be controlled by the lawful government of the civil state. But it now appears that portions of my beloved State of Nevada have fallen prey to this kind of unlawful rule. I do not support Mr. Bundy and his unregulated little band of outlaws, who are assisting him in his continued squatting and trespass on lands he does not own, and it sickens and frightens me that they have won the day and have been successful in their unlawful enterprise. I am also deeply concerned that certain local political candidates have taken up the cause of populist demagoguery in support of Mr. Bundy, and that many of these politicians come from my Republican party. I had always thought the Republican party stood for upholding the U.S. Constitution, and honored its Lincoln legacy in standing against would-be secessionists. I do not understand how we can uphold the U.S. Constitution when we support a man who does not recognize the existence of the government established by that Constitution, and has called upon armed support to physically resist executive branch officers acting under Article II of the Constitution, enforcing legislation enacted pursuant to Article I of the Constitution, under Orders issued by U.S. District Courts established by Article III of the Constitution. If we conservatives are going to support this man, then what part of the U.S. Constitution do we exactly believe in?
As you are seeking public office, I would like you to answer for me and other voters the following questions:
1. If you obtain the office you are seeking, will you take the oath you are required to take, to uphold the Constitution of the State of Nevada?
2. If so, will you uphold that oath, by opposing “any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States” and recognize that “the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority”? Or will you violate your oath and stand with those who “forcibly resist the Execution of [the Federal Government’s] laws” and support those, like Mr. Bundy and his followers who oppose the aforestated principles of the Constitution of the State of Nevada?
3. In the event that, upon your taking office, Mr. Bundy remains in violation of the law, any of his cattle remain on Federal land without lawful authority, or he or any of his supporters remain in apparent de facto political control of any territory under the lawful jurisdiction of the State of Nevada and the United States of America, what acts will you take to remedy each and every one of these situations so as to ensure that those portions of the Nevada Constitution quoted above are upheld, mobocracy is put down, and the rule of law is restored?
As a Nevada voter I feel I am entitled to an answer to these questions, as I feel they directly relate to your fitness for the office which you seek.
D. Chris Albright
Las Vegas, Nevada
April 21, 2014
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