Land transfer to states would mean less land access for typical American-

The idea that the states are really the constitutional, legal, rightful owner of the U.S. public lands is without merit.

Origin of U.S. public lands

The United States owns 650-million acres of land. That is about 30 per cent of the land area of the country. At one time the U.S. government owned all — 100% — of the lands west of the original 13 states. This federal land ownership began when the original states ceded their “Western Land claims” in the decade beginning in 1781. Other than these Western lands claims, none of the original public domain was ever owned by states.  These lands cannot be given back to the states because the states never had them.

Constitutional authority

There are those who claim the federal government has no constitutional right to own lands except for a few forts and the District of Columbia as authorized in Article 1, Section 8, Clause 17 of the Constitution. If this was the sum of  federal authority, it makes it hard to explain how at the beginning the federal government owned all but the 13 states. Why were not these new territories’ lands instantly given to the citizens, the states, or put up for sale to the highest bidder?

In fact, land acquisition by the United States in North America took place through treaties and purchases, beginning with the Louisiana Purchase in 1803 and ending with the purchase of Alaska in 1867. Through the years, the federal government acquired 1.8 billion acres in North America. The U.S. Constitution addresses this in what is called the Property Clause, not in Article I, section 8, clause 17.  The Property Clause (Article IV, section 3, clause 2) reads, “The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

Complete legal federal power over the federal public lands

The Supreme Court has described the power of Congress to make laws regarding the public lands is substantially without limits in the 1976 case Kleppe v. New Mexico, 426 U.S. 529, 542-543 (1976). The United States, thus has full power to manage these lands as it wants, or alternatively to sell some or all of them, give them away, or transfer them.  The federal government originally did not want to keep these lands, but only dispose of them in an orderly, lawful way. Over the years, 1.2 billion acres were privatized. Laws such as the Homestead Act and grants such as the railroad land grants are examples of the methods used. Millions of acres were given to the states in land grants.  Almost all federal lands in the states east of the Missouri River passed into private ownership. The federal government can grant states some management authority, but it can take it back. The best example is wildlife management. The federal government generally allows hunting and fishing managed by the states on public lands, but it can and does, e.g., endangered species, take that back.

The beginning of federal land reservations

In 1872 Congress created Yellowstone National Park in the unorganized territory of the West — the Park was not preceded by the states of Montana, Idaho or Wyoming. Later Yosemite National Park was created, and in 1891 the “Forest Reserve Act” became law permitting the President of the United States to set aside for federal retention forest reserves from the public lands.  Presidents set to reserving lands — President Benjamin Harrison put 13 million acres into what would become the National Forests.  Grover Cleveland reserved 25 million acres.  William McKinley reserved 7 million acres. 

During the presidency of Theodore Roosevelt (TR) in 1905 the U.S. Forest Service was created and the forest reserves were renamed “national forests.” TR strongly believed in the conservation of natural resources by a strong federal government, and he reserved 150 more national forests, continuing until stopped by an act of Congress. During his term in office, Congress also created five more national parks; and TR, using the new Federal Antiquities Act of 1906, created 18 national monuments.

Later some of the states, especially Eastern states, began push for the re-creation of federal public lands within their borders. These lands came from abandoned private lands that were in derelict condition and from purchase and gifts from private persons.

FLIP MA and federal land retention

Over the years, public interest in retaining the federal lands grew and interest in disposal declined. This culminated with the Federal Land Policy and Management Act of 1976 (FLPMA).  FLPMA repealed all the land disposal lands and made it national policy that from now on the general intent was to keep all the public lands. This is the current situation.

In 1976 the so-called “sagebrush rebellion” emerged in some Western States. It was from the rural parts of these states. Many attributed it to the passage of FLPMA, but it could be equally due to backlash from the pressure from conservationists for better grazing and forestry practices on the federal lands, and the desire and move to establish more wilderness areas and national parks. The rebellion calmed down about 1984 and/or was quashed, but it keeps returning in various guises, generally as a demand for land transfer to the states. It has usually been led by ranch interests, but today it is pushed primarily by ALEC (American Legislative Exchange Council), the Koch Brothers political vehicle for establishing their ideology and policy preferences into law. Typically, mining, fossil fuels, and real estate developers desire the federal lands for development without the environmental regulations, fees and royalties required by federal land management agencies.

Sagebrush Rebellions

If the Western states get hold of the U.S. public lands, a big loser will be those who want to travel, to roam the American landscape freely. Every year there are about a billion visits to the federal public lands. Many Western cities and towns recruit employers and employees with the promise of access to the nearby national forests, parks, and BLM lands. Westerners have a freedom that is cherished, yet not usually formally recognized, in free or low cost and nearly unlimited access to these vast public lands.

State owned and managed lands

All states currently have various state lands. Most open to the public are the various state parks. These are, with a few exceptions, smaller than national parks. Many states also have state wildlife management areas, state forests and other state lands. Most Western states largest holdings are the state school endowment lands or “trust” lands. Idaho, for example, retains 2.5 million acres of school endowment land. It had 3.4 million originally. Utah has 3.4 million acres, Wyoming 3.5 million, Nevada, however, sold theirs and has none. Arizona and New Mexico retain a  whopping 9-million acres each. These trust were granted to the states from the federal government at statehood for support (mostly) of the public schools, then a democratic and forward thinking concept, though according to the right maybe a bad idea now to be abolished — public education.

Public access to state trust lands

The state trust lands are not managed for public access or recreation like the federal lands are in part. Parts of the trust lands in many states are open to the public for a fee.  In some cases, such as Montana, the public had to fight to be allowed on the trust lands.  Only the grazing permittee had been allowed on them. Even today, the trust lands in Wyoming are only open to the grazing permittee. In Idaho there is no right of public access, though many are open in fact because they are unmanaged by the state, being interspersed with federal lands and effectively managed by the federal agency land mangers.

State trust lands and maximum revenue

Few state trust lands are managed at all for wildlife or recreation. Their mandate is for maximum revenue for the public schools. This often means selling the land — privatization. This is the biggest threat to public access. In all the states, most of the revenue from the retained state lands comes from mineral leasing or sale, or forestry (logging). The largest use in acres is usually grazing, but that often barely breaks even. Some think the state grazing programs are a scandal even though most states charge from three to ten times the amount grazers pay to use federal lands. Of course, many think that federal grazing management is scandal too.

Proponents of state management confidently say they will do a better job than the federal government though they rarely give any facts.  For example, the Speaker of the Idaho House of Representatives, Scott Bedke, a big public lands grazer, said “Our critics will say that what we’re seeking to do amounts to a big state land grab, or that we are trying to privatizing these public lands,” Bedke said. “Neither of these claims are true. We want to keep these lands under public ownership, but we want to manage them through a different paradigm. Idaho has a very good track record of managing its own public lands and we do it better than the federal government.” However, Bedke gave no facts or figures why Idaho’s 2.2-million acres are managed better than Idaho’s 54-million acres of federal public lands. See: Idaho Speaker Bedke given credit for Western states federal lands’ meeting. Idaho Reporter. The bark beetles he mentioned respect no boundaries, neither state nor federal nor private. They have decimated the forests from the Yukon to Arizona.

Visitors do have to pay to use the national parks and monuments and an increasing number of federal sites on the national forests and wildlife refuges. This growth in fees is controversial, but fee or free, public lands give far more room to roam than private property.

 

 

 
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About The Author

Ralph Maughan

Dr. Ralph Maughan is professor emeritus of political science at Idaho State University with specialties in natural resource politics, public opinion, interest groups, political parties, voting and elections. Aside from academic publications, he is author or co-author of three hiking/backpacking guides.

26 Responses to Federal public land equals freedom to roam

  1. avatar Wolfy says:

    The feds and the State of Oregon are looking to cede off huge chunks of timber land to either the counties and/or private industry. This is all being orchestrated by our congressional and state delegations. Seems that they would rather split the baby to appease the timber lobby than enforce the environmental protections. What a sad state of affairs. The public as a whole are the biggest losers and the timber beasts win, big time!

  2. avatar JEFF E says:

    “land acquisition by the United States in North America took place through treaties and purchases, beginning with the Louisiana Purchase in 1803 and ending with the purchase of Alaska in 1867.”

    Beg to differ.
    land acquisition took place thru war, genocide, slavery, deceit and lies. much like it has throughout history in all lands.

    • avatar Ralph Maughan says:

      Yes Jeff E, but I was giving t h e legal analysis 😉

      • avatar Sue carter says:

        BLM recently appointed Robert Cope to the BLM Advisory Board. Cope is past president of NACO, National Association of Counties Org. Nevada Assoc. Of Counties is suing BLM and demanding that BLM held wild horses be removed and those in holding be killed. Ken Ivory and Dave Miller are pushing the same in Utah. miller is Commissioner of Iron County Utah and from Bunkerville Nv. A friend of Cliven Bundy. Both are members of the Constitution Party. They do not recognize the Federal Government.

  3. avatar Ida Lupines says:

    The only exception I can see is in the UP. Thanks to the foresight of those who put aside private land, (and also not turn it into a National Park), it may someday be one of the last wild places left on the planet. What dismays me is that we regard highly our own right to the public lands, but trash them. Federal land doesn’t mean it won’t fall into the wrong hands, especially today.

    • avatar Ida Lupines says:

      Rare exception, I should say. It’s not a realistic ideal to say that our right to roam trumps care for these disappearing wild areas. I’m sick of hearing about human goals, and these places should be protected simply because they exist, not what value they provide. I honestly don’t think everyone deserves them.

      It seems today kids can’t even tell the difference between a concrete wall and a living tree (much less where their food comes from), with tagging tree trunks and saguaro cacti with graffiti, and tipping over rock formations that are millions of years old. Our Interior Secretary has her work cut out for her, and not much time to do it in.

  4. avatar Ralph Maughan says:

    Because ranchers have been behind past sagebrush rebellions, it might appear that the Cliven Bundys or the Scott Bedkes of the West are behind recent moves to transfer the public land to the states and then to private hands, but this time there is real money, a broader base, and big energy behind it. An article in Outside Magazine takes a look.

    May 8. Public-Land Protests and Their Big-Energy Puppet Masters: A showdown at a Utah canyon pits ATV users against the BLM. But the real operators in public-land disputes are out of view—and out to use sportsmen to advance their cause.

  5. avatar LM says:

    Off topic but a worthy post. From Greenwire (no link available). FWS Historian’s Mission statement to students

    INTERIOR:
    FWS history buff tells tales of ‘ratty’ polar bears, agency icons
    Robin Bravender, E&E reporter
    Published: Wednesday, May 14, 2014

    We had to delete this because it is copyrighted material. We can’t have a comment that includes more than a brief excerpt.

    Webmaster.

  6. avatar CodyCoyote says:

    My Park County WY commissioners did something last week that caught me off guard. They gave $ 5000 in tax money to a 501 (c) 4 organization based in South Jordan Utah dedicated to coordinating the effort to revert federal lands to the States.

    That organization is called the American Lands Council.
    American Lands Council
    10808 S. River Front Pkwy Ste 334
    South Jordan, UT 84095

    (801) ALC-6622
    info@americanlandscouncil.org

    I am putting this info here because I tried and tried to find out something —anything — and determine a responsible person or party for the ALC. I came up mostly empty. Whoever they are, they do not want to attach a face to their name. But thanks to a tangential glance at Glenn Beck’s website as a result of a wide Google search about ALC , it was revealed that the President of American Lands Council is Ken Ivory, a Utah state legislator from Jordan. The address given for their office is in a very swank office park. Shows up well in Google Earth / Google Maps street view as being a first class joint. These people are not working out of a steel building or a dusky motel room.

    While their website is flashy , it is almost entirely rhetorical and very conservative rhetoric at that ( you’d say far right wing if demanded to define it ). Yet it’s reach is quite extensive. The ALC has been successful in getting many counties in the rural or sub-metro West to join up and bankroll…I counted no less than 38 western Counties in Wyoming, Idaho, Utah , Nevada, Oregon , and Washington…most enrolled at the ” Silver” or ” Bronze” funding level. So these folks are definitely conscripting county governments, big time. Like my own.

    Searches also came up with isolated unrelated unattributed comments that American Lands Council is partially or maybe substantially supported by the Koch brothers’ organization(s) , a few steps removed from the letterhead.

    The largest single individual contributors to ALC funding is the team of Bert and Kathy Smith of Ogden UT who are well known as strident and financially generous regional supporters of the ” 9 – 12 ” movement spearheaded by Glenn Beck . 9-12ers parallel the Tea Party movement but generally have slightly higher IQ’s and more money.

    There is also an ALC public Facebook page that is interesting reading, but keep your anti-nausea meds handy.

    The Bottom Line: the American Lands Council is a primary driver of the ” take back our federal lands” campaign in the American West , and they appear to be well organized while avoiding the bright light and PR prominence. They work in the shadows, but are racking up support in state and county governments. I suspect they are using a modified ALEC model and have taken operational lessons from the Heartland Institute. They have momentum.

    It would be a coups to establish a connection to the Kochs. My gut tells me it’s there.

    Should we be concerned about the American Lands Council 501(c) 4 group. My research says yes.

    Anecdotes from Wildlife news readers from your neck of the West concerning ALC would be appreciated.

      • avatar Nancy says:

        “I’m hoping to God that all the states — it’s not going to be Nevada or Utah or Idaho, but all the states — go back to Washington and say: ‘Here’s the problem we’re seeing. Here’s the waste of money and mismanagement that’s out there, let the states control a lot of this stuff,’ ” said Nevada Assemblyman John Ellison, who sponsored a bill in the Silver State to study whether it could take over public lands:

        A lot of this stuff?….. Wow!! Lets all bend over right now if you don’t give a crap about how OUR federal lands are gonna be treated in the future once the states get a hold of them.

        • avatar Nancy says:

          Oh and, Big Thumbs Up on the first comment below this article 🙂

        • avatar Immer Treue says:

          I believe it’s been said here before, but…what happens if some of these big (National) forests revert to the state, and boom, it burns? Is there money in state coffers to fight fires? Would the Feds thumb their noses and say be careful for what you wish?

          • avatar Nancy says:

            So much chatter about the subject:

            ttp://hotair.com/archives/2014/04/19/western-states-debate-retaking-control-of-federal-lands/

  7. avatar snaildarter says:

    The States have a poor record on land management. Have we forgotten the dust bowl? There wouldn’t be any wildlife left in America if it were left up to the States. The Federal Government with all its faults is usually the only rational voice in the room when it comes to land exploitation. Migrating birds, Rivers and blowing dust don’t stop at state lines.

    • avatar Nancy says:

      +++++ snaildarter 🙂

    • avatar WM says:

      snaildarter,

      Don’t forget it was the federal Homestead Act that offered up that land for settlement and ownership, mostly free land and all. Not many strings attached to it for cultivation or periodic rest, which land under intensive crop practices needs. I don’t know the states had much to do with soil conservation, because the they were mostly by-passed (not that they had anys skills) as federal land went immediately to private ownership. And, because of the feds initial screw-up opening so much land to intense cultivation (that was not suitable as it turns out), and years of Dustbowl wind and water erosion, with folks leaving the farms, they created Soil and Water Conservation Districts with a massive federal/state/local bureauacracy that survives in even larger numbers and greater cost today. And the feds still hand out lots of your tax money under a variety of programs for soil/water conservation, habitat preservation, crop risk insurance and market price support subsidies.

      You wouldn’t know that makes the feds the smartest folks in the room – at least not when discussing things around here with all the bad-mouthing of the Taylor Grazing Act and public lands grazing in the West.

      Speaking of land exploitation and rational minds, the mining laws haven’t changed much in a over a hundred years.

  8. avatar DavePA says:

    As a taxpayer I always feel the the federal property is my property, held for future generations and everyone to enjoy. In my opinion the “sagebrush” types always want a simplistic solution to everything, it is black or white. Most solutions to a problem are more complex and require compromise, and compromise typically requires effort and involvement. Dv

    • avatar Nancy says:

      DavePA – you’ve come to an excellent site if you want background regarding “federal property is my property” or anything else regarding the west, wildlife etc.

      Search button is at the top right side of the page……. go for it 🙂

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Quote

‎"At some point we must draw a line across the ground of our home and our being, drive a spear into the land and say to the bulldozers, earthmovers, government and corporations, “thus far and no further.” If we do not, we shall later feel, instead of pride, the regret of Thoreau, that good but overly-bookish man, who wrote, near the end of his life, “If I repent of anything it is likely to be my good behaviour."

~ Edward Abbey

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