Logan Glasenapp for LWVNM October 17, 2017
The debate over public land ownership has been burning for almost two centuries. Sometimes just as a slight simmer and sometimes as a raging wildfire, threatening lives–as in the occupation of the Malheur Wildlife Refuge. This memo provides some brief background of the debate, including an overview of the arguments for and against transferring public lands to the states. Briefly, it would not be in the states’ best interests nor would it be in the federal government’s best interest to transfer public lands to states. It may provide a short-term boost to state economies, but it would bring long-term ecological and economic ruin in its wake.
The proponents of the transfer movement often cite two key provisions of the U.S. Constitution in making their legal argument. The first, the Enclave clause (Article I, Section 8), is easily dismissed as an incredibly myopic reading of a specific section of the Constitution. The Enclave Clause is not a limit to Congressional power, it is an expansion. In allowing the federal government to have exclusive legislative power over Washington, D.C. and any future military lands purchased from the states, the Constitution extends Congress’s power to the exclusive rather than just the supreme. Section 8 is an all-out declaration of the supreme power of Congress in the United States, and that power is further bolstered by the Property Clause (Article IV, Section 3), another favorite of transfer advocates. The language, “Congress shall have [p]ower to dispose of,” indicates that the presumption is that the United States is the first named property owner of all lands under U.S. jurisdiction. Once a territory goes through the necessary steps to become a state, Congress has the power to determine how much land to dispose of to that state. Transfer advocates focus on the “or of any particular [s]tate,” language and the use of the word “Territory” in making their justification, which essentially boils down to an argument that once states are admitted to the union, the property within their borders becomes property of the state, since they are no longer a “territory” and therefore not subject to Congressional discretion in land disposition. This is just simply not the case, and that argument has been rejected by the Supreme Court. No federal land may be disposed of without Congressional action.
Additionally, Congressional power and discretion under the Property Clause has been construed broadly. In Ashwander v. TVA , the Supreme Court followed a line of interpretation dating back to 1840 when it said, “The disposal must be left to the discretion of Congress. And there can be no apprehensions of any encroachments upon state rights.” 297 U.S. 288 (1936) ( quoting United States v. Gratiot , 39 U.S. 526, 533, 538 ). The Gratiot case was an early challenge to the power of the Property Clause, and illustrates how deeply enshrined deference to Congressional action is under this power. Illinois had complained of the United States receiving royalty revenue from mines within its borders. The Court held that because the mining law in question was passed before Illinois was a state, the state could not make any complaints now. The Court then took their opinion one step further, in one of those rare moments of judicial foresight which is so helpful to this debate today, by saying “[Illinois] surely cannot claim a right to the public lands within her limits.” From 1840 to today, the Supreme Court has not failed to construe the Property Clause as inherently vesting all property rights in the federal government and giving Congress the power to dispose of those lands as it sees fit. The phrase, “and of any particular [s]tate,” as written in the Property Clause does not seem to have any effect on the overall impact, interpretation, or use of Congress’s Property Power.
In 1976, the federal government enacted the Federal Land Policy and Management Act (FLPMA). Three years later a civil disobedience movement began in Nevada that would become known as the Sagebrush Rebellion. Claiming that the “[t]he exercise of such dominion and control of the public lands within the State of Nevada by the United States works a severe, continuous, and debilitating hardship upon the people of the State of Nevada,” the Nevada State Legislature defined public lands as “all lands within the exterior boundaries of the State of Nevada,” except certain lands held by private persons, or various federal agencies including the Departments of Defense and Energy, and the Bureau of Reclamation. Following passage of Nevada Assembly Bill 413, five other western states passed similar legislation. While the Nevada statute only went as far as to redefine the term “public lands,” it created a movement that swept across the West.
The Sagebrush Rebellion did not just exist in dead letter legislation; it found its way to the Supreme Court and to various other federal district courts. In response to federal legislation restricting open use of the federal public lands, the state of New Mexico filed suit against the Secretary of the Interior in an effort to protect ranchers’ priority to federal lands for cattle grazing. The filings in the Supreme Court for Kleppe v. New Mexico (1976) included 11 amici curiae that advocated a wide variety of positions. New Mexico challenged the Wild Free-Roaming Horses and Burros Act, alleging that the federal government had no authority to control wild animals on public lands unless they were traveling in interstate commerce. The Supreme Court of the United States rejected this argument, holding that the federal government had the authority under the Property Clause, regardless of the interstate nature–or lack thereof–of the horses and burros.
The rebels voiced three concerns with the trend of federal legislation during the early to mid 20 th Century: (1) the restriction on their traditional, relatively free, use of the public lands; (2) their dismissal from decision-making processes; and (3) the observed disconnect between the stated intent, goals, and policy of federal land management and the actual practice. For them, FLPMA marked another move away from the open lands era of the past and further removed federal lands from what they considered the public domain. They felt that the succession of federal legislation reserving public lands threatened their way of life and signaled that environmental concerns would supplant their economic interest.
In the 1990s a second rebellion, led by Cliven Bundy, started as a protest against changes to the grazing rules on the BLM land in Nevada where he ran his cattle. Bundy refused to pay the grazing fees, but continued to use the allotment. Neighboring Nye County, with advice from Bundy, attempted to take ownership of federal lands through two resolutions claiming ownership to “all ways, pathways, trails, roads, country highways, and similar travel corridors across public lands in Nye County,” and claiming that the state of Nevada owned all public lands within its borders. The state did not support the county’s claims and the U.S. District Court in Nevada granted the federal government’s motion for summary judgment in the case of U.S. v Nye County , declaring that the U.S. owned the disputed public lands and had the power to manage and administer those lands. The decision was appealed but not reversed.
The federal government has gone through various public land policy phases. As environmental advocacy increased, all kinds of western, traditional industries–logging, ranching, mining, among others–saw themselves cut off from public lands and perceived the ejection as permanent.
However, FLPMA did not turn out as preservationist as rebels feared. By signaling that no use was superior to another, but that one use may be more appropriate to certain parcels of land, the federal government attempted to satisfy the western groups that would become Sagebrush rebels, as well as conservation and environmental interest groups. FLPMA did not divert from traditional federal policy; in fact, the federal government had more or less adhered to the same restrictive practices for decades. Additionally, the timing of curtailed access to federal lands coincided with negative global economic trends, especially for westerners involved in mineral development.
Like the modern-day land transfer movement discussed below, the Sagebrush Rebellion received Congressional support in various ways. 1981 was an especially busy year for Congressional murmurs around the idea of transferring lands, seeing bills introduced in both houses of Congress. Representative Manuel Lujan (R-NM) introduced a bill that would have transferred 400,000 acres to New Mexico in exchange for the federal reservation of White Sands Missile Range. Following Congressman Lujan’s lead, Senator Harrison H. Schmitt (R-NM) proposed an extension to the White Sands transfer that would have allowed states to select federal lands in exchange for all federal military reservations. Finally, in a strange attempt to resurrect the now officially defunct Homestead Act, Representative Philip M. Crane (R-IL) proposed legislation that would have allowed an applicant to receive not more than 160 acres of federal land after paying a token fee and building a house within three years. None of these bills became law, but they serve as an analogy between the transfer movement of the Sagebrush Rebellion and the transfer movements of the 21 st Century.
There has been absolute consistency with the Supreme Court’s interpretation of these Constitutional provisions and the various state enabling acts. The U.S. owns the land, period. The federal public land policy has been developing since the founding of our nation, beginning with western expansion and homesteading, leading to the Taylor Grazing Act, and ultimately the FLPMA of 1976, which was the organic act of the Bureau of Land Management. In addition, the organic act of the National Park Service was passed in 1916, and the organic act of the Forest Service was passed in 1897. The trend since the turn of the 20th century has been for retaining public lands in federal ownership. Transferring these lands to the states would be a complete reversal of policies dating back to the philosophy of Henry David Thoreau, George Bird Grinnell, John Muir, Gifford Pinchot, and President Theodore Roosevelt.
FLPMA is still the law of the land and the Supreme Court has been steadfast in its holdings that the U.S. is the owner of these public lands and the only way states can become the owners is through Congressional action. Sometimes transfer advocates will point to Pollard v. Hagan (1845) as support for their position, in combination with the Equal Footing Doctrine. The argument is that if Alabama owned the disputed lands in that case, then all states entering the Union after Alabama should be on an equal footing. This is a perversion of the Court’s decision. The Court held that Alabama owned the navigable waters and the lands underlying those waters. Pollard was, at its core, a question of navigability and tidal movements, not of land ownership. It is true that under the Equal Footing Doctrine all states are granted ownership of the navigable waters and the underlying lands and Pollard supports that interpretation. What Pollard does not do, however, is extend the doctrine to all public lands.
A similar legal endeavor has not been mounted in the decades since Nye County, but we have seen a renewed legislative push as recently as the past ten years. New Mexico’s state legislature has beaten back minority bills to pass some kind of legislation on public lands transfer. The State Land Manager, Aubrey Dunn partnered last year with the late Pete Domenici to create a plan for lobbying the U.S. Congress, hoping to gain support for Commissioner Dunn’s proposal for Congress to transfer all federal mineral rights to New Mexico. Utah passed its Transfer of Public Lands Act (TPLA) in 2012 demanding the federal government transfer public lands by 2014. The federal government has yet to respond to Utah’s demands. In fact, one of the transfer movement’s most outspoken advocates, Jason Chaffetz. Chaffetz, recently reversed his position and announced that he would not be seeking reelection to the U.S. House of Representatives; he later resigned abruptly and signed on to become a Fox News pundit. Montana, Wyoming, and Nevada all have or have considered bills that would authorize state tax revenue to be spent on transfer studies. Montana received such a study that revealed what many opponents of the transfer movement have been saying for many years: it makes no sense fiscally or conservationally to transfer public lands to state ownership.
The short story here is that the federal government and state governments manage their public lands under drastically different mandates. If states were granted all of the public lands within their borders, it would create a short-term boom to their economies and long-term destruction of the environment. The federal government operates under a multiple-use/sustained-yield mandate that requires managers to consider the best use of specific pieces of public lands, usually rather small swaths of land. It further requires any natural resource production from public lands to be done in such a way that the lands will produce in perpetuity, or as close to perpetuity as possible. In contrast, most western states operate under a revenue-maximization mandate, as written into their state enabling acts.  They are not required to consider environmental impacts of their public land management, nor are they required to consider the efficacy of producing small revenues for a long time rather than vast revenues for a short time. This idea conjures images of Texas oil fields in the early 20th century before spacing requirements became standard.
Besides the straight-forward difference in the mandates, state and federal land managers just simply have different approaches, permit prices, and royalty structures. Without exception, grazing permits for state lands are more expensive than grazing permits for federal lands. Most states have a higher royalty rate for oil and gas produced on state lands. According to the Montana study mentioned earlier, only under the most optimistic market forecasts will transfer of federal public lands make the state money. This is not a question of how much money will the states make from transfers, it is a question of will the states make money from transfer. The sheer management costs incurred by the federal government every year, if taken on by the states, would outweigh most revenue projections. Of course, there’s a counterargument to this that says state management would be more streamlined and would not need to do anything towards conservation. This may be true, but the Montana study should hopefully scare states away from this idea for good.
There is little scholarship on what would actually need to happen for public lands to transfer to states. But it seems as simple as Congress passing a law that details what parcels or swaths are to be transferred, and then those lands are transferred. It is not clear if there would be any issues with this type of action if Congress were to transfer, say, Yellowstone National Park, which lies in several states. I suppose Congress could only transfer the lands within states that requested them, but I have no doubt that any action of that kind would be subject to litigation. There is the possibility that Congress would opt to simply relinquish all title to federal lands to the states in which they sit, resulting in a massive transfer of all lands to state control. This is the most unlikely result of the transfer movement, and I am unaware of any statement by any sitting Congressperson supporting this idea. It would result in a massive loss in revenue for the federal government, coupled with many federal employees losing their jobs as a result of nothing to manage. This would only result in unimaginable logistical issues for the states. More traditionally industrial states–like Idaho and Colorado–would turn into barren wastelands with little biological diversity while more “green” states like California would become the sole destination for wilderness lovers. States are indeed the laboratories of democracy, but this experiment has already been tried in limited ways and should not be repeated to the maximum.
See e.g. , Enabling Act of 1910, ch. 310, 36 Stat. 557, § 10 (Enabling Act of Arizona and New Mexico).