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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 our wealth… but in the United States about half of the land west of the Rocky Mountains is owned and controlled by the Federal Government. Forty-nine percent of the land west of the Rocky Mountains including Alaska is controlled by Congress 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 Western State from a high of almost 90% in Nevada to a low of just under 30% in Montana. The combined average in all twelve western states is just under 50% compared to about 3% in States which are east of the Rocky Mountains.. The twelve western States along with the amounts of  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 controlled by the Federal Government is much less as you can see by this map.  Why is there such a huge disparity in the amount of land controlled by Congress east of the Mississippi River and west of the Rocky Mountains? By what legal stretch of the imagination and unconstitutional misappropriation of Congressional authority did the United States Government wind up in control of so much of the land in the West? The disparity clearly violates the Equal Footing Principle by which all new States were supposed to be admitted to the Union on the same basis as all of the previous States. 

So how did Western States lose control over nearly half the land within their borders?   We are not talking about a meager amount of land. We are talking about over 700 million acres, almost one third of all the land in the United States of America… All of this land is administered by Congress and controlled from Washington D.C. and the overwhelming majority of this land is located west of the Rocky Mountains.  So just how did this happen? 

When Western States applied to be admitted to the Union, Congress required them through various Enabling Acts which it passed to relinquish control over this land. It was a quid pro quo.  Even more amazing than this constitutional overreach is the fact that all twelve western States agreed to go along with this plan. The Constitution limits the amount of land which the Federal Government can own and control to just “ten miles square” (one hundred square miles) which is the District of Columbia plus small amounts of land to be used for the construction of forts and ports, post offices and other needful buildings.  This part of the Constitution is known as the Enclave Clause. (Article 1 Section 8 Clause 17).

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

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 land grants of 160 acres . This same policy was tried west of the Rocky Mountains but for various different reasons it was abandoned.  When settlers began homesteading land in the West it soon became obvious that 160 acres was just not enough land to support a viable farm. In many areas of the West there was not enough timber to build a house.  The weather was unpredictable and rain and water were unreliable. In some places there just wasn’t any water. There were many reasons that homesteading Western land proved to be much harder than it was east of the Mississippi River Valley, and the original Homestead Act of 1876  did not make any allowances for such things. It was 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 pursued a strategy of retaining control over most of the land west of the Rocky Mountains. This was one of the first signs that something was running amuck with our Federal government in Washington D.C.  The balance of power between the States and the central Government had shifted in favor of Washington D.C.

During the last half of the 19th century and the early part of the 20th century land grants to homesteaders began to be harder and harder to obtain. Unless you were willing to settle in Alaska they were few and far in between. Then in 1976 all homesteading came to an abrupt halt when the Homestead Act was repealed. As land grants were being phased out they were being issued primarily to railroad companies as an incentive to build the railroads which would eventually connect the east and west coasts. They were issued to miners to prospect for gold and other precious minerals, but because of the difficulties of homesteading in the West, land grants were no longer being routinely  issued to farmers and ranchers. Western pioneers were encouraged to settle in pre-existing communities that were springing up along the railroad lines.  These were the first tenuous steps of the Federal Government’s into urban planning. From this rather timid beginning the Federal Government’s land management policies have only become progressively worse and more restrictive over time.

The Taylor Grazing Act was enacted by Congress in 1934 to manage western grasslands.  Then along with the repeal of the Homestead Act in 1976 Congress passed the Federal Land Policy and Management Act  . It was signed into law by President Gerald Ford to formerly codify into law the government’s new policy of retaining control over all remaining public lands. You don’t have to wonder how this metamorphosis happened.  Two hundred years had passed since the Constitution was signed and the Federal Government had been created, and as it became more powerful over the years with the passage of the Sixteenth Amendment and the creation of the Federal Income Tax, Washington began to assert its new found power in ways and in areas where it has no Constitutional authority to do so, and so it began to exert its new found leverage over new States as they were admitted to the Union.

Starting with Nevada, Congress pressured newly recognized States to sign what amounted to a quit claim deed to huge amounts of land within their borders in order to gain admittance to 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 sovereign borders. Under The Enabling Act of 1910 New Mexico and Arizona were both forced to relinquish control of approximately 45% of the land within their borders. The same thing happened to 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 it still is unconstitutional. The Federal Government has no Constitutional authority to control such 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 which created the 90,000 acre Malheur National Wildlife Refuge in eastern Oregon. The bird refuge 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 which 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 property if they ever decide to sell it… and the Government has been doing just about everything in its power to force them to sell it too including throw them in jail for five years. When Republicans praise Teddy Roosevelt they should never forget 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 imost of the private ranchers, loggers and miners who used to live here have long since been driven out of business by excessive government regulations.. About the only thing left to do in Harney County is to work for a government agency and watch the birds fly by overhead which brings me to my next point. Some of the biggest supporters of federal land policy in the West are the environmentalists who live hundreds of miles away in big cities like Portland, far removed from the realities of rural life. They are the ones who keep insisting that public land should be maintained and administered by the Federal Government for the good of everyone. What they really mean is that they want public land to be kept as a private park just so that they can come out there once a year on a weekend and enjoy the scenery. There is no constitutional basis for their claim that the Federal Government can control such vast amounts of territory. 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 has the power to keep it forever.

Dwight Hammond

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

The latest government attempt to force the Hammond family to sell their ranch now includes additional jail terms  of five years a piece for Dwight and Steven Hammond of Burns Oregon plus $400,000 dollars in fines for setting several small back fires on their property in 2001 to burn weeds and again in 2006 to protect their house from a wildfire that was raging nearby.  At least one of the backfires accidentally spread onto adjacent land they were leasing from the government.  The Hammonds were convicted of federal arson charges and they were sentenced under the Anti Terrorism and Effective Death Penalty Act of 1996.  They are currently serving their second jail terms in a California federal penitentiary thousands of miles away from all their friends and family.  This second jail term after they served their original sentences and were released from prison is really no different than double jeopardy.

The Department of Justice 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.”  This same Federal government which  charged Dwight and Steven Hammond with arson under an  anti-terrorism law also retains control of over 700 million acres of western land that it has no constitutionally authority to own. It is time to put the Federal Government back in its constitutional cage which America’s Founding Fathers have prepared for it.

The Federal Government needs to begin divesting itself of most of the land it administers in the Western States. It has been acquiring this land ever since the Lewis and Clark Expedition in 1804. This land is being held in clear violation of the United States Constitution. Prior to 1804 the United States obtained a huge chunk of territory from the French through the Louisiana Purchase of 1803. Vast additional amounts of land were added later after the annexation of Texas in 1845, after the treaty with England in 1846 by which we obtained the Oregon Territory in the Pacific Northwest, after the Treaty of Guadalupe Hidalgo in 1848 which ended the Mexican American War by which we obtained most of the southwestern United States, and again after the  Gadsden purchase by which we purchased some additional land from Mexico in 1853 to adjust the boundary line between Mexico, California, and Arizona. The United States also purchased Alaska in 1867 from Russia. However there exists no Constitutional authority for the Federal Government to continue to retain control over these lands forever.

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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