Time to End all Federal Control of State Land
By Scott Rohter, February 2016
IT IS NOT BY COINCIDENCE THAT ARTICLE 4 SECTON 3 OF THE CONSTITUTION READS THAT “CONGRESS SHALL HAVE THE POWER TO DISPOSE OF TERRITORY BELONGING TO THE UNITED STATES.” It then goes on to say that “Congress shall have the power to make all needful rules and regulations regarding this property.”
The disposal of territory acquired by the Federal Government has always been the ultimate objective of the Property Clause.
The Federal government has no Constitutional authority to remain in control of 700 million acres of land in twelve Western States in some cases for more than a hundred years after these States were admitted to the Union.
The proper solution to this violation of the Equal Footing Principle is to return all land acquired by the Federal Government back to the States from whom it was taken by the various Enabling Clauses which Congress passed.
These public lands should be returned to State and local control as the Federal government had been doing prior to the passage of the Federal Land Policy Management Act of 1976.
The divestiture of public land should be done in a manner consistent with the Constitution and State and local land use laws.
In 1976 Congress passed the Federal Land Policy Management Act. This legislation formally repealed the Homestead Act of 1862 and it put into practice the government’s current policy of retaining control over all existing public land. Since then the Federal government has not issued any more land grants. The FLPMA was signed into law by President Gerald Ford during his last year in office, but it was proposed and drawn up during the Johnson and Nixon Administrations. It delegated the authority to administer most of the public land to the Bureau of Land Management which had been created just thirty years earlier in 1946 by the merger of two entirely different governmental agencies each with conflicting purposes and agendas.
The General Land Office and the U.S. Grazing Service were frequently at odds with each over how to manage “federal lands” so when these agencies merged to form the Bureau of Land Management, Congress established the Public Land Law Review Commission in 1964 to come up with a consensus on what to do with “the federal lands.”
In its report submitted to Congress in 1970 the Public Land Commission came up with a brand new concept for managing these lands. The Public Land Commission favored retaining control over all remaining public lands rather than disposing of them as they are required to do under the Constitution. In its report the Commission stated, “We … recommend that the policy of large-scale disposal of public lands reflected by the majority of statutes in force today be revised and that future disposal should be of only those lands that will achieve maximum benefit for the general public in non-Federal ownership while retaining in Federal ownership those whose values must be preserved so that they can be used and enjoyed by all Americans.” While in theory this sounds good, in reality the Federal Government has no Constitutional authority to control vast amounts of land for any reason. The Commission had proposed a new and radically different method of managing public land which had not been disposed of yet and which is as unconstitutional as it was new. Its recommendation prepared the way for the passage of the Federal Land Policy Management Act in 1976 which set a new tone for all future Federal land use policies.
Three years later in 1979 six Western States joined forces to demand the return of all federally administered lands within their borders. Arizona, Nevada, Utah, New Mexico, Washington and Wyoming either passed laws or filed lawsuits against the Federal government in an effort to wrest control of State land away from the Bureau of Land Management primarily and the U.S. Forest Service.. Their decision to challenge the Federal Government’s ownership of vast tracts of State land was called the Sagebrush Rebellion. The legal challenge presented by these States had no effect on the administration of public lands during the Carter Administration, but in 1979 Presidential candidate Ronald Reagan indicated that he was sympathetic to their goals. After being elected President in 1980 Ronald Reagan tried to do something, but he was essentially blocked by a Democratic Congress led by Tip O’neill who was listening more to legal threats emanating from the environmental lobby than they were to the goals of the President of the United States. The only thing that President Reagan was able to do for the six States that joined the Sagebrush Rebellion was to relax some of the Bureau of Land Management’s more onerous rules with executive orders.
The Constitution says in Article 4 Section 3 Clause 2 that Congress has the power to dispose of Federal property belonging to the United States Government. Except for 100 square miles comprising the District of Columbia that is exactly what Congress is supposed to do… dispose of Federal property unless it is land on which to build a fort or a port or a post office. That power does not rest in the White House. It resides in the Halls of Congress and members of Congress have the power to make all the laws and regulations regarding this property until they dispose of it, but ultimately Congress is required to dispose of all the property it administers outside of the District of Columbia except for forts and ports and other needful buildings. Congress cannot retain control over 700 million acres of State land forever. They are only allowed to manage this land until they dispose of it. The only solution is to return it to State and local control. They can only hang on to so much land under the General Welfare Clause of the Constitution or the Property Clause.
There is no Constitutional authority for the Federal Government to hold on to seven hundred million acres of land west of the Rocky Mountains. Another important thing to notice about the language in the Property Clause is that Congress has the power to dispose of the land, not to retain control over it forever as is currently being done under the Federal Land Policy Management Act of 1976.
The legacy of the Public Land Law Review Commission created under President Johnson and the Federal Land Policy Management Act signed by Gerald Ford is still a source of contention. The problem of what to do with our federally administered lands is still the subject of a debate as was demonstrated recently in Oregon during the occupation of the Malheur National Wildlife Refuge.
Over 700 million acres of land in the continental United States is controlled by the Federal Government. This amounts to nearly half of all the land west of the Rocky Mountains. Over 90% of the State of Nevada is administered by the Federal Government. Almost 70% of the State of Alaska is administered by the Federal Government. Long standing private property rights which date back to long before the creation of the BLM are being ignored. Some Ranchers are being harassed and intimidated like the Hammonds of Oregon and the Bundys of Nevada. . Good Americans are going to jail for no apparent reason, and at least one man LaVoy Finicum of Arizona has been shot to death just for believing in the Constitution. It is about time that these federally administered lands be returned to the States from which they were taken when the Western States were admitted to the Union, or to the counties wherein they are located, or to the people. The bulk of these lands can be sold and the proceeds from these sales can be used to pay down the Federal Debt. I would suggest that the Federal Government cannot even afford to manage our public lands properly and the States can do a much better job. The damage to Oregon’s National Forest from the B and B Complex fire that broke out in the Cascade Mountains sadly demonstrates this.
Article 4 Section 3 Clause 2 does not give Congress the right to hang on to Western lands forever. Congress has the authority to make laws regarding the management of these lands only until it disposes of them, but ultimately Congress must dispose of the land as the Constitution requires. The only land that the Federal Government is allowed to retain forever is 100 square miles called the District of Columbia. The time has come to begin the process of disposing of the majority of the 700 million acres of public land that Congress now controls.
Since the re-incarceration of two Oregon ranchers Dwight and Steven Hammond sparked the demonstration at the Malheur National Wildlife Refuge it is only proper that Oregon take a leadership position in the new Sagebrush Rebellion. What possible reason could the State of Oregon have for not wanting to exercise sovereignty over its own land? I have heard it said that Oregon does not want to be responsible for the cost of fighting fires on these lands. If that is the case then the Oregon Department of Forestry can always let our forests burn to the ground like the U.S. Department of Forestry did in 2003. I have heard it said that we will need to do exhaustive studies to determine if it is even feasible to manage our own land. All those studies have already been done by the twenty eight states east of the Rocky Mountains who are already managing their own land… The unconstitutional occupation and control of Oregon by the Federal Government must come to an end and it must come to an end in eleven other Western States too.
THIS IS A LINK TO A NATIONAL PETITION TO RETURN CONTROL OF ALL FEDERAL LAND ADMINISTERED BY THE BLM TO THE STATES AND COUNTIES RESPECTIVELY OR TO THE PEOPLE. PLEASE SIGN IT AND SHARE IT. YOUR NAME WILL NOT BE PLACED ON A MAILING LIST. http://www.ipetitions.com/petition/congressional-petition-regarding-federal-lands
Half of the land in Oregon is controlled by the Federal Government. If you live in Oregon and you would like to see the control of Federal land returned to Oregon Counties and to its people please sign this petition here at http://www.ipetitions.com/petition/oregons-federally-administered-lands