Public Lands in New Mexico's Chihuahuan Desert. Photo by Jim O'Donnell
In January 2016, two dozen armed militants took over the Malheur National Wildlife Refuge in Oregon. “We’re here to unwind the claims the federal government has on this land,” announced Ammon Bundy, a Nevada cattle rancher who lead the occupation. “The federal government does not have the authority to come down into the states and control its land and resources,”
The story is well known. What’s less understood is what led Bundy to believe that he had a right to land that was set aside as migratory bird habitat by President Theodore Roosevelt in 1908, three decades after Native Americans who had been living there were forcibly removed by the U.S. military.
The federal government owns 47 percent of the 11 Western states. We often hear the cry to “give the land back” to the states from people like Bundy, who are opposed to federal ownership of public lands. The idea that the federal government is required to turn over those public lands to the states or individuals has long permeated certain extreme Right-Wing and anti-Federal government groups. But it is an idea that ignores both the U.S. Constitution and the entire history of the nation.
In the 1940s several coastal states sued the federal government in an attempt to establish ownership over federally-owned lands in the Outer Continental Shelf. The states hoped to gain ownership over the offshore oil and gas resources (and the revenues they would generate) technological advances suddenly made available. At the center of their claim was an obscure section of a case that came before the U.S. Supreme Court in 1845— Pollard's Lessee v. Hagan
(44 U.S. 212), more commonly known as simply Pollard v Hagan.
The case had to do with competing claims to submerged federal lands in Alabama. Mr. Pollard had purchased land in Alabama from the federal government, while Hagan claimed that the land was not the governments to sell, both because the Spanish government had given it to him, and because the land had been underwater when Alabama became a state, meaning that it would have been governed by laws that placed navigable waterways under the control of the states. The Supreme Court disagreed about the Spanish title, but agreed that the land was underwater when Alabama became a state, and therefore was under state jurisdiction. In most respects, it was a very simple ruling. But it is a small detail in the majority opinion written by Supreme Court Justice John McKinley that catches the attention of anti-public lands activists.
McKinley’s opinion made several wide-ranging declarations about the U.S. Constitution that had little to do with the case, but possibly a lot to do with his past occupation as a senator, when he had demanded the federal government cede public lands to the states. Among McKinley’s claims in the Pollard v Hagan decision were that the federal government only had “temporary” rights to own public lands, and that the federal government was supposed eventually to give them away to the states or other parties.
John Leshy, Distinguished Professor of Law Emeritus at U.C. Hastings, describes the McKinley ruling as “disjointed” and “muddled.” McKinley’s claims had no precedent, and they were contrary to the historical understanding of Congress’s power over public lands that dated back to the founding of the nation. “This is the case that far-right conservatives will pound the table with,” says Charles Wilkinson, Distinguished Professor of Law at the University of Colorado’s Law School, on Pollard v Hagan. “But it doesn’t hold water.”
The Constitution Holds the Answer
The federal government’s right to own and manage public lands is written into Article Four of the Constitution which states:
“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.”
Anti-public lands activists often point to the phrase “dispose of,” and claim that this wording requires the federal government to transfer public lands to states and individuals. But both Wilkinson and Leshy point out that “dispose of” had several broad meanings at the time the Constitution was written, including the right “to regulate”.
Meanwhile, the actions of the Constitution’s own authors support a “to regulate” interpretation of “dispose” rather than a “to give away” one. At the time the Constitution was written, public lands were seen as force to promote national unity (never mind the indigenous populations whose land it had been). Leshy points out that almost every national leader at the time from Henry Clay to John Quincy Adams to James Madison (one of the principal authors of the Constitution) were all against the idea of giving all federal lands over to the states. John Quincy Adams worried that selling off too much public land would have a destabilizing impact on the nation, driving states apart and increasing economic inequality, which most of the founders saw as dangerous to democracy. In his Third Annual address to Congress in 1827 Adams stated that public lands were “the common property of the union, the appropriation and disposal of which are sacred trusts in the hands of Congress.”
From the very beginning of the republic public lands were recognized as vital to the national interest. In 1784 seven states with land claims west of the Appalachian Mountains surrendered 230 million acres of lands to the national government in the negotiations leading up to the Articles of Confederation.
Later, after the Constitution was adopted, Congress and President George Washington made the decision that the federal government would hold on to some of these lands These lands included things like forests for naval ship building, salt deposits, military installations and certain areas occupied by Native Americans.
At the same time, the federal government purchased land within states. West Point, acquired in 1790 for military purposes, is an example of this. Ownership of public lands by the federal government and the federal government's purchases of lands within states were essentially non-controversial in the earliest days of the nation.
After Pollard v Hagan there were several other cases arguing that Congress had a duty to transfer lands to the states, says Charles Wilkinson. Decision after decision by the courts (Grisar v McDowell in 1867, Gibson v Chouteau in 1871, Van Brocklin v Anderson in 1886 and Light v United States in 1911, for example) reaffirmed that the federal government has a right to own and manage lands held in the public interest.
In 1976 the case Kleppe v New Mexico came before the Supreme Court. In it, the State of New Mexico argued that the Enclave Clause of the Constitution limited Congress’s authority over public lands and animals on those lands under the Property Clause. The court firmly rejected this line of thinking. In a unanimous ruling the court held that the power over public lands entrusted to Congress in the Property Clause is “without limitations.”
The Federal Land Policy and Management Act (FLPMA) was enacted the same year, to govern how public lands administered by the Bureau of Land Management are managed. The opening policy statement of the act states that Congress sees the value of public lands and declares that they should remain in public hands.
Confusion, Not Clarity, is the Point
At this point it should be clear that the federal government has no obligation to turn over public lands to the states. Was the Federal government required to give public lands away to the states at statehood? No. “This is cut and dried,” says Wilkinson. And yet for a small group of radicals the matter is anything but settled.
For example, both during and after the Malhuer national wildlife refuge occupation Ammon Bundy and his supporters cited a paper prepared by Utah's Commission for the Stewardship of Public Lands that based its opinions in large part on these long-discredited arguments.
In 2015 that commission, based on the oddly reasoned paper, approved a plan to sue the federal government to force a takeover of public lands. Utah State Representative Ken Ivory, who sits on the commission, pushed this move through the state legislature which allocated $14 million of taxpayer dollars for the case. To date, the state of Utah has paid for the preparation of the lawsuit but they have not actually filed. According to Greg Zimmerman, Deputy Director of the Denver-based Center for Western Priorities, the lawyers hired to prepare the suit are now under scrutiny for misspending the public funds on private planes, expensive hotel rooms and high-priced dinners.
Interestingly, Mr. Ivory who once stated that: “All we seek is for the federal government to honor the same statehood enabling act promise to transfer title to the public lands that it already kept with all states east of Colorado.” Ivory is the former President of The American Lands Council (ALC), a key organization behind the movement to transfer Western federal lands to state control. ALC is funded in part by Charles and David Koch, billionaire brothers and conservative activists who believe that privatization is the answer to everything that ails American society, says Zimmerman.
In 2016 Ivory left ALC for a stint running the “Free the Lands” project at the right-wing group Federalism in Action (FIA), another Koch funded effort. FIA is a member of the State Policy Network, yet another Koch-funded network of more than 50 right-wing think tanks in states across the country. Likewise the Kochs and a number of other wealthy individuals fund the American Legislative Exchange Council (ALEC) and the American Enterprise Institute (AEI) both of which push anti-public lands policies in state legislatures around the West. In fact, the only state in the west that hasn't made a claim on public lands at one time or another is California.
(Representative Ivory did not respond to repeated requests for interview for this article).
These Koch-funded organizations, from ALC to AIE and ALEC, promote a wide variety of misinformation about federally-managed lands to the public via social media, newspaper columns and conferences. That misinformation includes the discredited reading of the Constitution and the McKinley statement in Pollard v Hagan. This misinformation gives backing to the opinions already held by anti-regulation, anti-public lands activist and organizations. And may influence some of the people like the Bundys to take up arms against what they see as illegal federal ownership of public lands.
But it apparently gets worse. People like the Koch brothers may be actually funding the type of people who took over Malheur. Several publications have reported on the money the Koch brothers use to fund efforts to sell off or give away public lands. But last year Think Progress reported on the Koch brothers efforts to fund violent anti-public lands activists like the Bundys.
“We see signals all over the place that right-wing billionaires are pushing this move to transfer public lands to the states,” says Zimmerman. “It is impossible to distinguish between their Libertarian ideology and their financial interests but clearly they stand to gain from a sell-off of public lands.”
It isn’t only Mr. Ivory who favors state seizures of public lands. Zimmerman’s organization compiled a surprising list of powerful politicians who are in favor of the state takeover of public lands. These include Senators John McCain and Jeff Flake of Arizona, Senator Rand Paul and Nevada’s Dean Heller among many others.
So even though this argument should be settled, it isn’t.
Was the Federal government required to give public lands away to the states at statehood? No. “As a legal question there is no question,” says Wilkinson. “Current case law is 100% clear on this issue and that is why other states haven’t rallied around what Utah. Congress has the Constitutional right to do as it sees fit with federal lands.”
##
