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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



 “Bounty and the Beast”

By Scott Rohter, January 2016


All of the bounty of God’s earthly blessings comes from the land. This includes both our health and our wealth… In the United States about half of the land west of the Rocky Mountains is owned and controlled by the Federal Government. To be more precise, forty-nine percent of the land in twelve Western States is controlled by Congress.  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 almost 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% compared to only 3% in States which lie east of the Rocky Mountains…

The twelve western States along with the amounts of  land owned by the Federal Government in each State are as follows: 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%).


Malheur National Wildlife Rufuge


East of the Rocky Mountains the percentage of land that is controlled by the Federal Government is much less as you can see from a quick look at 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 by what unconstitutional misappropriation of federal authority did the United States Government wind up in control of so much 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. They were suppose to be admitted to the Union on the same basis as all of the other States. 

So just how did Western States lose control over so much of their land?    We are talking about over 700 million acres of land, half of the land in these twelve Western States… almost one third of all the land in the entire United States of America, and all of this land is administered by Congress. It is controlled by politicians in Washington D.C.  The overwhelming majority of this land is located west of the Rocky Mountains in just twelve States.  How did this happen? 

Starting with California in 1850 when future States applied for admittance to the Union they were required by Congress through various Enabling Acts to relinquish control over vast amounts of  land. It was a quid pro quo that each new Western State had to agree to before they could become a State..  Even more amazing than this violation of the Equal Footing Principle  is the fact that all twelve Western States agreed to this land give away. 

Notwithstanding this historical injustice,  the United States Constitution places strict limits upon the amount of land which the Federal Government can control. It is limited to just “ten miles square” or one hundred square miles of land which the Federal government purchased from the States of Virginia and Maryland. This became the seat of government and the future capitol of our Nation (the District of Columbia). The Constitution allows the Federal government the right to acquire certain additional amounts of State land for specific  purposes with the consent of the State legislature. but this land can only be used for the construction of forts and ports and “other needful buildings” like post offices.     There is no place in the Constitution where the Federal government is allowed to control vast amounts of land like it now does.. There is no place where it gives the Federal government the authority to administer a 160,00 acre National Wildlife Refuge in Oregon as a sanctuary for birds.  The part of the Constitution which explains this is referred to as the Enclave Clause. (Article 1 Section 8 Clause 17 and 18).

Since all of the powers that belong to the Federal Government are listed in the Constitution and it has no other powers other than those which are enumerated therein according to the 9th and 10th Amendments,  it is reasonable to conclude that the federal government does not have the authority to control 700 million acres of land in twelve Western States.  There is only so much land that the Federal Government can legitimately designate as “forts and ports and other needful buildings” or as National Parks or Monuments under the General Welfare Clause of the U.S. Constitution. So then just where does the federal government derive the authority to administer such vast amounts of land from?

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 each . This policy was also implemented west of the Rocky Mountains, but for various reasons it did not succeed as it did east of the Rocky Mountains and it was subsequently abandoned. When pioneers crossed the mountains and settled in the West it soon became apparent that 160 acres of land was just not enough  to support a family and make a go of it.  In many areas there was not enough timber to build a house.  The weather was unpredictable. Rain and water were unreliable. In some places there was no surface or subsurface water. There were many different reasons why homesteading 160 acres of land was not viable in the West like it was in the East. The Homestead Act of 1876  did not make allowances for such things. It was 160 acres or nothing, and if you didn’t comply with the terms of the land grant than you lost your claim to the land.

Steens Mountain Wilderness Area

Steens Mountain wilderness area in Harney County, Oregon near Hammond Ranch


 The Federal Government eventually developed a policy of retaining control over most of the remaining land west of the Rocky Mountains. This was one of the first indications that something was running amuck in our Nation’s capitol. The balance of power  was shifting from the States to the central government.

During the last half of the 19th century and in the early part of the 20th century land grants became harder and harder to obtain. Unless you were willing to homestead in Alaska these land grants were few and far in between. In 1976 all homesteading came to an abrupt end when the Homestead Act was repealed. As land grants were being phased out for farmers and ranchers they were still being offered to railroad companies as an incentive to build the railroads that would eventually connect our country.  They  were still being issued to miners to prospect for gold and other minerals, but because of the hardships of homesteading, land grants in the West were no longer  being routinely issued to settlers. Pioneers were encouraged to settle in pre-existing communities that were springing up along the railroad lines.  These were the tentative first steps of the Federal Government into the arena of urban planning, and from this rather timid beginning the Federal Government’s land management policies have become progressively worse and more restrictive over the ensuing years.

 In 1934 Congress enacted  The Taylor Grazing Act  to manage western grasslands.  Along with the repeal of the Homestead Act in 1976 Congress passed the Federal Land Policy and Management Act  in the same year. It was signed into law by President Ford to formerly codify the government’s new policy of retaining control over all remaining public land. It is not hard to understand how this metamorphosis occurred.  Two hundred years had passed since the Constitution was signed. The Federal Government had been expanding and growing more powerful over the years  especially since the Sixteenth Amendment had created the Federal Income Tax. Washington began to assert its power in ways and areas where it had no right to do so and no Constitutional authority to do so. That is why Congress was able to exert its newfound leverage over new States as they were admitted to the Union.

Starting with California in 1850 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 has been just as permanent as it is unconstitutional. The Federal Government has no Constitutional authority whatsoever to control vast amounts of State 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 doubled in size since its formation 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 their ranch if they ever decide to sell it… 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 unconstitutional actions by the Federal government in our nation’s history.

About half of the people in the town of Burns, Oregon are now employed by the Federal government since most of the private ranchers, loggers and miners who used to live here have been driven out of business by excessive government over regulation.. About the only thing left to do in Harney County is to work for a government agency and watch the birds fly overhead as they migrate to the refuge which brings me to my next point. Some of the biggest supporters of federal land policy in the West are these 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 maintained as a private park 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  should control 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 has the power to keep it forever.

Dwight Hammond

Dwight Hammond (Oregon rancher whose re-imprisonment over a grass fire to control weeds 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 and patriot)

Ammon Bundy (rancher and patriot) removing fence preventing cattle from grazing on public land

In order to understand what land rightfully belongs to the Federal Government one merely needs to refer to Article I Section 8 of the United States Constitution where it specifically states that one hundred square miles (ten miles square) around the District of Columbia which was purchased from the States of Virginia and Maryland became the seat of the Federal Government plus certain additional amounts of land on which to build “forts and ports and other needful buildings”on. Any other land which the Federal Government currently claims to own is unconstitutional. There is no basis in the Constitution for the Federal Government to own 700 million of acres of land in twelve Western States or a 160,000 Bird Sanctuary in Oregon.

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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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