Politics & Policy

The Federal Government Should Follow the Constitution and Sell Its Western Lands

Hole-in-the-Wall, Wyo. (Bureau of Land Management/Flickr)

‘Time and again [the president] preached cooperation and partnership. . . . And time and again he was the first to ignore his own call,” says the governor of Colorado. Wyoming’s governor complains: “The federal system is badly out of kilter. Federal encroachments on state and local governments are at an all-time high.” The governor of Arizona fumes: “What galls westerners is . . . the federal insistence that it is entitled to act not only as landowners, but also as sovereign.” Adds Colorado’s governor: “[Government bureaucrats] can’t figure out whether they’re landlord or king,” as they “steamroll state agencies, ride roughshod over regional water rights, and destroy environmental laws [in an] arrogant nullification of 200 years of constitutional history.”

These are the impassioned words, not of today’s western governors, but instead of governors from nearly four decades ago, Democrats all, objecting to the policies of President Jimmy Carter. Little wonder California governor Ronald Reagan, in an October 1979 radio address declared, “from the Rockies, across the deserts and all the way to the Pacific, the western states are voicing their angry resentment of a powerful absentee landlord — the Federal government, which has overlaid the West with controls and regulations as irksome as barb wire was in an earlier day.”

A president’s policies are enormously important not only to a western governor but also to the entity that manages the state’s lands and to county commissioners, especially in counties with massive federal land holdings. The Interior Department’s Bureau of Land Management (BLM), which controls nearly 250 million acres, and the Department of Agriculture’s U.S. Forest Service, which manages more than 190 million acres, together control land greater than the total size of Alaska; the acreage also exceeds the acreage of the next three largest states (Texas, California, and Montana) and Colorado combined. These lands are managed in accordance with “multiple-use” principles, which means they are to host a variety of activities, including energy and mineral development, logging, grazing, and recreation, to name a few.

Multiple-use was introduced in 1960 in the management of national forests and then extended to BLM lands in 1976. But something happened during the intervening years: the arrival of the environmental movement. Beginning with the National Environmental Policy Act (1969) and continuing through a plethora of other federal laws, Congress dramatically enhanced the power of the “public” to intervene in land-use decision making. For decades the only people interested in such parochial issues as grazing on barren expanses of western land were affected westerners. Now scores of environmental groups that are not affected by federal decisions but are interested anyway have stepped forward as the hyper-engaged public. (There is a difference. As we say out west, a chicken is interested in what you have for breakfast, but a pig is affected.) These groups have their own view of multiple-use, which lean heavily toward limited use, occasionally permitting recreation but usually favoring preservation or non-use. Environmental groups have intervened in land-management decision making, lobbied assiduously for congressional oversight and more restrictive federal laws, and litigated aggressively in federal court.

Nonetheless, it was not federal legislation that provoked the “Sagebrush Rebellion.” It was the policies of the Carter administration. Carter viewed himself as an environmentalist and staffed federal offices with people from the movement. Therefore, Governor Reagan, speaking in Salt Lake City in the summer of 1980, said: “I happen to be one who cheers and supports the Sagebrush Rebellion. Count me in as a rebel.” Later, a President Reagan declared that the federal government should be a “good neighbor” and recognize state sovereignty and federalism. By September of 1981, Newsweek reported the rebellion was over. But it’s back today, because President Obama governs like Carter, only worse. This time westerners know that only getting title to the much of the land in the West will bring real change.

Nonetheless, it was not federal legislation that provoked the ‘Sagebrush Rebellion.’ It was the policies of the Carter administration.

In May 2013, National Public Radio’s All Things Considered told the tragic story of an Oregon woman’s desperate zero-dark-thirty telephone call to 911 seeking law enforcement’s help to stop her ex-boyfriend, who had put her in the hospital weeks earlier, from breaking into her house. Because of severe budget cuts, however, no sheriff deputies were on duty in Josephine County at night or on the weekends. In fact, the sheriff issued a press release advising domestic-violence victims to “consider relocating to an area with adequate law-enforcement services.” Unable to heed that advice or to get help from law enforcement, the woman was viciously attacked, sexually assaulted, and sodomized.

What happened to Josephine County? Sixty-seven percent of the county is owned by the federal government. In 1975, the county and its neighbor, Jackson County were home to 22 saw mills; none exist today, thanks to lawsuits by environmental groups and policies of the BLM and the Forest Service. In fact, the last mill closed the week of the NPR broadcast. Today Josephine County’s unemployment rate is 11 percent; 30 percent of residents are on food stamps.

The federal government owns one-third of the country’s landmass, most of it in the West: nearly a third of Colorado, Montana, New Mexico, and Washington; roughly half of Arizona, California, Oregon, and Wyoming; and almost two-thirds or even more of Alaska, Idaho, Nevada, and Utah — the three non-western states with the most federal land are New Hampshire (14 percent), Florida (13 percent), and Michigan (10 percent). Worse, federal ownership nears or exceeds 90 percent in many vast rural counties; for example, 85 percent of Kane County, Utah; 92 percent of Inyo County, Calif.; and 97 percent of Teton County, Wyo.

Something about this seems unfair. After all, in Shelby County v. Holder in 2013, Chief Justice Roberts, writing for the Court declared: “Not only do States retain sovereignty under the Constitution, there is also a ‘fundamental principle of equal sovereignty’ among the States. . . . Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’” Where — one wonders, considering the fate of Josephine County, which after all is but an arm of the state of Oregon — is the “dignity” in what has befallen its residents? One could ask the same of Harney County, Ore., where overzealous federal prosecutors charged trespassing ranchers with terrorism; or Garfield County, Utah, which last year declared a state of economic emergency and that is still reeling from President Clinton’s edict barring a world-class coal mine there; or Campbell County, Wyo., which is the country’s largest supplier of coal (40 percent of America’s coal is mined there) and which Obama signaled last week he planned to kill.

In recent years, westerners have dusted off the history books, the constitutional law treatises, and the writings of the Founding Fathers in an attempt to discover why they find themselves in this situation, whether it was meant to be, and what they can do about it (in fact, the Heritage Foundation is presenting a conference on “Federal Mismanagement of Western Lands” today, January 19). It is not the first such effort; in 1932, Congress conducted eight days of hearings regarding “Granting Remaining Unreserved Public Lands to States.” In recent days, one group, the American Lands Council led by Utah state representative Ken Ivory, released a lengthy report on the subject. Meanwhile the Utah legislature has green-lit a multi-pronged effort that includes both litigation and federal legislation; other western states are approaching the issue more cautiously.

The Founding Fathers intended all lands owned by the federal government to be sold. After all, jurisdiction over real property, that is, property law, was given to the states. Moreover, when Gouverneur Morris proposed that the Constitution’s Property Clause provided that all land in Louisiana and Canada — the latter of which he thought would soon join the Union — be made a perpetual federal province, he was all but shouted down. Instead the universal assumption was the federal government would dispose of its land holdings; as James Madison put it, the new government would “promote the sale of the public lands.” Article I, which relates to Congress, does recognize the need for the federal government to own land that it “purchased by the Consent of the Legislature of the State in which Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings” — through this “Enclave Clause,” the Founders recognized that the national government must not be at the mercy of a state in the performance of its federal functions.

The Founding Fathers intended all lands owned by the federal government to be sold.

The Constitution provides additional authority for Congress over “the Territory or other Property belonging to the United States,” but it is set forth, not in Article I, which concerns Congress, but in Article IV, which concerns the states, including admission of new states, the Full Faith and Credit Clause, and the Privileges and Immunities Clause. Placement of the Property Clause in Article IV demonstrates the Founder’s intention to not provide Congress with absolute power over federal lands; otherwise, the provision would have been in Article I. Furthermore, the clause gives Congress unlimited power “to dispose of” its property, but sharply limits its rulemaking authority to “needful Rules and Regulations.” The Supreme Court correctly and narrowly interpreted the Property Clause in 1845, holding that the clause gave rise to a constitutional duty to dispose of its land holdings. Unfortunately, the Court made a mess of the Property Clause in 1976, holding that its power was “without limitation” in a case involving the theft of burros from federal land. Properly read, that ruling is limited to the holding that while the federal government owns land, states may not interfere with that land; it says nothing about the federal government’s continuing duty to dispose of its lands.

Moreover, westerners who seek authority over BLM and Forest Service land, not including designated wilderness areas or parks and wildlife refuges (after all they are held by the National Park Service and the Fish and Wildlife Service) argue that yet another provision mandates a federal duty to dispose of federally managed land: that is, the enforceability of the Enabling Acts under which the states were admitted. Although opponents point to the “forever disclaim all right and title to the unappropriated public land lying within” the new state’s boundary language in those Acts, the fact is, the provision was included to protect the clean title of the United States so that the United States could dispose of or sell the public lands.

Today that is a western issue, but in 1829, the West was Illinois.

Today that is a western issue, but in 1829, “the West” was Illinois — where 99.9 percent of the land was federally owned; residents called that “oppressive” and unconstitutional, not unlike what is heard from the American West today. Within a few years, the United States performed its constitutional duty in Illinois where now it owns less than 2 percent of the Land of Lincoln. It is hardly surprising that westerners think they should be treated likewise.

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