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The Burning Question of Federal Land Use Policies and Land Ownership in the Western United States

Posted by Scott Rohter on Sunday, January 17, 2016


land acquisitions of the United States
















“Bounty and the Beast”

By Scott Rohter, January 2016


Malheur National Wildlife Refuge

Malheur National Wildlife Rufuge (Oregon)

All the bounty of God’s earthly blessings comes from the land. This includes our health and wealth, but in the United States about half of the land west of the Rocky Mountains is controlled by the Federal Government. To be exact forty-nine percent of all the land in twelve western States including Alaska, but not Hawaii is owned by the Federal Government and controlled from Washington D.C. This is the Beast in my analogy of Bounty and the Beast.


The actual percentage of State land owned by the Federal Government varies in each State from a high of about 90% in Nevada to a low of just under 30% in Montana, but the combined average in all twelve western states is just under 50%. The twelve western States along with the amounts of State land owned by the Federal Government are: Washington (35%), Oregon (53%), California (45%), Idaho (50%), Nevada (85%), Montana (30%), Wyoming (42%), Colorado (37%), Utah (57%), Arizona (48%), New Mexico (41%), and Alaska (69%).




East of the Rocky Mountains the percentage of land claimed by the Federal Government is much less as you can see from a look at this map.  It is somewhere around 3%. Why is there such a huge disparity in the amount of land owned by the Federal Government east of the Mississippi and west of the Rocky Mountains? By what legal stretch of the imagination and constitutional misappropriation of authority did the United States Government wind up in control of so much land in the West? This disparity clearly violates the equal footing principle in the United States Constitution which was supposed to be applied to each new State as it was admitted to the Union. 

How did Western States lose control of nearly half of the land within their borders?   We are not talking about a meager amount of land here. We are talking about 700 million acres of land which is about one third of all the land in the United States. All of this land is administered and controlled by the United States Government from Washington D.C. Most of this land is located west of the Rocky Mountains.  How did this happen? Interestingly enough Congress simply required western states to relinquish control of this land through various Enabling Acts which it passed when they were admitted to the Union. Even more amazing is the fact that all twelve western States agreed to go along with the plan. Whether they thought the land would be ultimately returned to them one day is unclear, but the Constitution limits the amount of land which the Federal Government can control to just “ten miles square” called the District of Columbia.  (Ten miles on all sides equals 100 square miles.) This is all the land that the Federal Government can control, that plus small amounts of land to be used to construct forts, ports, and post offices on.  This part of the Constitution is known as the Enclave Clause. (Article 1 Section 8 Clause 17).

Since all the powers that belong to the Federal Government are enumerated in the Constitution and it has no other powers which are not mentioned according to the 9th and 10th Amendments and since it does not say anywhere in the Constitution that the Unites States Government can control such vast amounts of land as it does and use it for whatever purpose it wants, it is perfectly reasonable to conclude that it is not permitted to do so. The Constitution does not give the federal government unlimited authority to control half the land in twelve western states and there is only so much land that the Federal Government can designate as National Parks or Wilderness Areas under the General Welfare Clause.

During the 19th century the Federal Government transferred title to millions of acres of land east of the Mississippi River Valley to individual farmers and ranchers through various land grants of 160 acres .  For various reasons this did not happen with the same frequency west of the Rocky Mountains.  When settlers started to homestead in the West it was discovered that 160 acres was not enough land to support a viable farm. In many areas there was not enough timber to build a house.  The weather was unpredictable. Rain was less reliable. In some places water was scarce. There were various reasons that homesteading in the West proved to be much harder than it was east of the Mississippi River Valley, but the original Homestead Act of 1876  did not make any allowances for such things. It was either 160 acres or nothing and if you didn’t comply with the terms of the land grand than you lost your claim to ownership of the land.

Steens Mountain Wilderness Area

Steens Mountain wilderness area in Harney County Oregon


Eventually the Federal Government developed a strategy of retaining control over most of the land it acquired west of the Rocky Mountains. This was a sign that something was running amuck with the central government in Washington D.C.  The balance of power between the States and the Federal Government was shifting in favor of Washington.

During the latter half of the 19th and  the early part of the 20th century land grants to homesteaders began to be harder to obtain unless you wanted to settle in Alaska. Then in 1976 all homesteading came to an abrupt end when the Homestead Act was repealed. As land grants were phased out they were primarily issued to railroad companies as an incentive to build the railroads which would eventually connect our country. Land grants were issued to  miners to prospect for minerals and precious metals, but because of the difficulties of homesteading land grants in the West were not routinely issued to subsistence farmers and ranchers. Pioneers were encouraged to settle in pre-existing communities that were springing up along the railroad lines.  instead of just anywhere they wanted to out on the open range. These were the first tentative steps of the Federal Government into the field of urban planning. From this timid beginning the Federal Government’s land management policies have only gotten progressively worse.

The Taylor Grazing Act was enacted by Congress in 1934 to manage western grasslands.  Along with the repeal of the Homestead Act in 1976 Congress passed the Federal Land Policy and Management Act  in 1976  and it was signed into law by President Gerald Ford to formerly codify into law the government’s new policy of retaining control and management over all remaining public lands. You don’t have to wonder how this metamorphosis happened.  By 1976  almost two hundred years had elapsed since the ratification of the Constitution which created the Federal Government. As Washington grew more powerful especially after the passage of the Sixteenth Amendment which created the Federal Income Tax it began to test the limits of its power in areas where it had no Constitutional authority and it began to use its leverage over new States as they were admitted to the Union.

Starting with Nevada, Congress pressured each newly recognized State to sign what amounted to a quit claim deed to huge amounts of land within their borders in order to be admitted into the Union. Under an 1864 Act of Congress which recognized the State of Nevada Congress stipulated in the third paragraph of Section 4 that Nevada agreed to give up control of what amounted to almost 90% of the land within its boundaries. Under The Enabling Act of 1910 New Mexico and Arizona were both forced to relinquish control of about 45% of the land within their borders. The same thing happened to each and every Western State as they were admitted to the Union. The price of admission was the loss of control over much of the land within their borders. It was and still is unconstitutional as the Federal Government has no Constitutional authority to control vast amounts of land.

Teddy Roosevelt

President Teddy Roosevelt (noted conservationist)

In 1908 Teddy Roosevelt who was one of America’s biggest promoters of big government signed into law the Congressional legislation that created the 90,000 acre Malheur National Wildlife Refuge in eastern Oregon. It has since doubled in size to over 180,000 acres through various government land grabs and forced buyouts of private landowners. Dwight and Steven Hammond of Burns Oregon are two of the last remaining private landowners in the Harney County Steens Mountain Wilderness Area. That explains why the Bureau of Land Management has been waging a relentless campaign of intimidation and persecution against them. That is why the Federal Government obtained a first right of refusal on the Hammond’s property if they ever decide to sell it… and the Government has been doing just about everything in its power to get them to sell it. When Republicans praise Teddy Roosevelt they should always remember that he was one of the biggest proponents of big government.

About half of the people left in the town of Burns, Oregon are now employed by the Federal government since it has driven out of business most of the private ranchers, loggers and miners who used to work there. About the only thing left to do in Harney County is to work for some government agency or watch the birds fly by which brings me to my next point. Some of the biggest supporters of federal land use policy in the west are the environmentalists who live hundreds of miles away in big cities like Portland which is far removed from the rural realities of the west. They are the ones who keep insisting that public lands should be maintained and administered by the Federal Government for the good of everyone. What they really mean is that they want the public land to be kept as a private park just for them so they can come out their on a weekend once a year and jog or hike and enjoy the scenery. There is no constitutional basis for the claim that the Federal Government can own such vast amounts of land. The Property Rights Clause in the U.S. Constitution says that Congress shall have the power to dispose of Property and Territory belonging to the United States. It does not say that Congress shall have the power to keep it.

Dwight Hammond

Dwight Hammond (Oregon rancher whose re-imprisonment sparked a national outcry)

The latest government effort to get the Hammond family to sell their ranch includes two more jail terms of five years a piece for Dwight and Steven Hammond of Burns Oregon and $400,000 dollars in fines for setting several small back fires on their property in 2001 and 2006. Some of these back fires were started to control weeds and some were started to protect their ranch home from a raging wildfire that was burning nearby. The backfires accidentally spread onto adjacent BLM land which they were leasing from the government at the time. The Hammonds were convicted on federal arson charges and they are currently serving their second jail terms in a California federal penitentiary under a Federal Anti-Terrorism Act signed by Bill Clinton in 1996.  They were sentenced to five more years in jail after serving their original time in what amounts to nothing less than double jeopardy.

The Department of Injustice has violated the Hammond’s Fifth Amendment Rights. The Fifth Amendment states that “no person shall be subject for the same offence to be twice put in jeopardy of life or limb.”  The same out of control Federal government which  charged Dwight and Steven Hammond with arson under an obscure anti-terrorism law also retains control of over 700 million acres of western lands that it is not constitutionally authorized to own. It is time to put the Federal Government back in its constitutional cage which America’s Founding Fathers prepared for it.

The Federal Government needs to start divesting itself of almost all of the land it owns out west which it has been acquiring ever since the Lewis and Clark Expedition in 1804. The land is being held in violation of the United States Constitution. Prior to 1804 the United States had just obtained a huge chunk of territory from the French via the Louisiana Purchase in 1803. Vast additional amounts of land were acquired later after: the annexation of Texas in 1845,  the treaty with England in 1846 by which we obtained the Oregon Territory in the Pacific Northwest, the Treaty of Guadalupe Hidalgo in 1848 which ended the Mexican American War by which we obtained most of the southwestern United States, the subsequent Gadsden purchase from Mexico in 1853 which adjusted the boundary between Mexico, California, and Arizona, and also following the purchase of Alaska in 1867 from Russia. There exists no Constitutional authority for the Federal Government to retain control of any of this land.

Ammon Bundy (rancher/constitutionalist)

Ammon Bundy (rancher/constitutionalist) removing fence preventing cattle from grazing on public land

In order to determine what land rightfully belongs to the Federal Government you have to refer to Article I Section 8 of the Constitution. There it specifically states that the only land that rightfully belongs to the United States Government is a ten square miles area which was designated as the District of Columbia and which became the seat of the Federal Government plus small additional amounts of land on which to build forts and ports and post offices on. Any other land which the Federal Government currently owns is unconstitutional. There is no basis in the Constitution for the Federal Government to own 700 million of acres of land. There is also only so much land that the Federal Government can claim under the General Welfare Clause.

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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  





Corroborating Sources!/articles/4/essays/126/property-clause

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