by Elizabeth Garvin, AICP, Denver, Colorado
Should the federal government continue to own and manage our public lands or should that property be turned over to the individual states for use or sale? For some Western states, the answer to that question is “individual states.” The Rocky Mountain Land Use Institute’s Carver Colloquium1 recently hosted a debate on the legality of state control over federal lands. According to the High Country News, 10 of 11 Western states have commissioned studies to “look into hypothetical federal-to-state transfers.”2 Given that the vast majority of federal lands are located in Western states,3 and the use of and accessibility to and across these lands can cause headaches for local governments and have significant impacts on the local economy, the on-going nature of this discussion is not surprising. This article provides a summary4 of the debate as framed at the Carver Colloquium. The session featured two legal authorities with extensive knowledge of the issues involved: Frederico Cheever, Denver University Professor of Environmental and Natural Resources Law representing the case for federal ownership, and William Perry Pendley, President of the Mountain States Legal Foundation representing the push for state ownership.
The evolution of public lands
Professor Cheever opened the debate with an introduction that provided some background information on the evolution of public lands. Currently, our federal government controls 28 percent of the land base in the United States, down substantially from the 81 percent it once held. The basis for federal ownership came about as part of the organization of our federal government.
Some of the colonies had land claims in the central and western United States while others did not. In 1780, the states that did not hold western lands refused to enter into the Articles of Confederacy because those states with western holdings would have carried that ownership into the organization of the new country. As a compromise, the ownership of the western lands was given to the federal government. The newly drafted U.S. Constitution granted power to the federal government to manage and dispose of the lands, as well as to admit new states to the union. The federal government proceeded to purchase and acquire land across the country, but eventually much of this public land in the eastern and central United States was sold off to pay federal debts and for public improvements while other land was given away over time.
As the population moved West and the landscape changed, the demand for private ownership of the land declined, and the land stayed in federal ownership. Eventually, the Bureau of Land Management was organized, and the federal government took on the role of managing arid western lands. Over the past 40 years, the federal government has tried to balance the various demands on these lands, including mining, grazing, oil and gas exploration, water development, and recreation.
Pendley’s introduction explored the question of why we are discussing this issue now and provided the following explanation. From the perspective of some western state governments, the federal government has steamrolled over state and local needs and priorities for a number of years – the federal government has been an “absentee landlord” over huge acreages in the West. The views and policies of federal officials regarding federal lands have a measurable impact on Western state and local governments, and federal policies have changed over time in ways that cause conflict. The land, by law, is supposed to be managed, not set aside as a wilderness; managed means allowing multiple uses including recreation, grazing, mining, and energy uses. The implementation of the management policy and approach, however, was impacted by the adoption of a number of federal environmental laws in the 1970s that sought to include local citizens and numerous organizations in the decision-making process. This led to conflicts and frustrations with federal officials, laws, and management, resulting in the Sagebrush Rebellion during the Carter era. President Reagan diffused the situation by responding to the issue and promising that the federal government would be a “good neighbor” in the West. This did not last, however, and changes in federal practice and policy since Reagan, particularly by the Obama administration, have once again disrupted this arrangement and have resulted in the current need to transfer land from the federal government to the Western states.
The Debate: Should the States Play a Role?
Pendley opened the debate with the position that states should take a role in the management of federal lands. He acted out a 911 call from a woman concerned about her former boyfriend trying to enter her house. No emergency providers were available to assist, so the 911 dispatcher told her to hide, but the boyfriend broke in anyhow. Pendley asked rhetorically why there was nobody available to respond, and the answer was budget cuts – this community was previously home to 22 sawmills that operated fully, all of which were shut down because of environmental laws and lawsuits.
Between 60 to 90+ percent of some western counties is owned by the federal government and the problem is not that the federal government is a landowner but also that it is a sovereign and that it acts accordingly. For example, in the Upper Peninsula of Michigan, the largest landowner of property around a lake sold their land to the federal government and the federal government then declared 95 percent of the land around the lake and the lake itself a wilderness area. Adjacent property owners were told they could not use the lake even though the federal government did not own the lake. One of the property owners challenged this refusal based on existing rights and Michigan law regulating access to and use of the lake and initially lost in court. Accordingly to Pendley, when the federal government changes existing property rights for private parties, it is not acting as a landowner but rather as a sovereign. He provided another example of this behavior by the federal government in Minnesota where the state gave up its right to the lands around Rainy Lake but not its rights to the lake itself, including retaining the right to civil and criminal jurisdiction over the lake. The National Park Service, however, decided to limit who could use the lake. According to Pendley, the U.S. Supreme Court, in an early Colorado case, held that the National Park Service could not do this, but the federal court upheld the Park Service’s actions anyhow. So why are the courts not stopping these actions? Federal attorneys use their resources such as jurisdiction challenges and summary judgement motions to keep the cases from getting to the judge. Pendley holds that this is not in keeping with the ethical requirements for attorneys to seek justice.
Pendley describes the federal government’s actions in court as a “silence defense.” For example, in one western county that is about 80 percent federally-owned, a number of rural county roads crossed BLM lands [in the Grand Staircase-Escalante National Monument]. When part of the county was included in the designation of a national monument, the federal government took over the roads in that area. The county asserted that the federal government was not maintaining the roads and sued for title to the roads, but the federal government would not state affirmatively whether they claimed ownership.
The lower court granted the county RS 2477 rights-of-way over the roads but this ruling was overturned by the 10th Circuit Court of Appeals and remanded for further review. In another example of phony federal defenses, one of Pendley’s clients in Arkansas had been subject to federal employees from the adjacent Ozark National Forest trashing his property. In court, the federal government claimed that it had been trashing the property for so long that it now owned the property by reason of adverse possession. And back in Michigan, the property owner was given the right to use the surface water of the lake in 1997. That property owner sold the property and when the new owners tried to use the lake the Forest Service told them that they could not use the lake because the previous court decision was applicable only to the property owner named in that lawsuit.
Pendley next described the Shelby County v. Holder decision, where the U.S. Supreme Court addressed the sovereignty of states, identifying a fundamental principle of equal sovereignty among the states equal in power, dignity, and authority. The Court referred back to the 1911 case of Coyle v. Smith, an Oklahoma case dealing with the state’s decision to move the state capitol from Guthrie to Oklahoma City. There was a challenge to the state’s authority to do this and in addressing that challenge, the Supreme Court went on to address Congress’ authority to admit states. The Court held that while Congress can admit states, each state retains its sovereignty and power, dignity, and authority.
During the 2013 federal government shutdown a number of governmental agencies acted to make it very difficult for the public to access federal properties, even when private businesses were somehow involved. In the West, there is a system of “payment in lieu of taxes” that recognizes that in western counties with tremendous amounts of federal land ownership there is little or no income to the county. Congress provides an annual appropriation through payment in lieu of taxes. This system becomes subject to the political vote-trading system in Washington D.C. and is frequently held up. Additionally, according to Pendley, during the shut-down the Secretary of the Interior traveled across the West telling elected officials that they had to support votes for the designation of wilderness proposals or the secretary would tell the President to issue more federal monument decrees to lock up land in the West, about which they could do nothing. One example of the locking-up of western land was the designation of the Grand Staircase-Escalante National Monument. The monument included 1.9 million acres of land in two counties that stopped the mining of a trillion dollar coal deposit and the attendant jobs and economic development that would have been to the benefit of the local economy and schools. Earlier this summer the county was required to declare a state of economic emergency.
Cheever presented the following points in favor of the federal government’s position in three parts: (1) what the Western states are doing is illegal, (2) the history of the public domain, and (3) whether the federal public domain is a good idea. It is common sense, according to Cheever, that the federal government is the owner of the public domain because they purchased it, fought for it, and have managed it. We may not like the way the federal government manages the land, but this does not mean that the states can take it. Second, the Constitution clearly gives the federal government power over the public domain. As part of joining the union, states had to disclaim their claims to federal lands. And third, federal law is supreme. Pendley asserts that the founding fathers could not imagine the approach we have now, but Cheever points out, they set-up this system and it existed in their lifetimes. Courts have held that the federal government has this power. The drafters of the Constitution spent their time identifying who would be in charge of solving problems and, in this case, it identifies Congress as the body who can decide what happens with federal lands.
Cheever states that many have claimed that the federal government holds the land in trust and must sell it off, and this claim has failed for over 200 years. The states that are currently claiming ownership of public lands are only claiming some lands, but this is not their choice to make as it belongs to the people and our federal representatives. There are a couple of unifying themes in the ownership of public lands. First, they are managed for the benefit of all of the citizens of the United States. The current attempt by Western states to change the ownership is nothing but a land grab that belongs to the citizens of all of our states. The problems we have dealt with on the public lands exceed the borders of a single state – from oil and gas leasing to transcontinental transportation, to pine beetles. These bigger issues are taken care, and paid for, by the federal government.
Cheever asks if this is good policy – is the federal ownership of the public lands a good idea? Has it benefitted the nation? Sometimes the federal government does not do well – nuclear testing, potential for mammoth coal mines, but there have been hard choices to be made such as the creation of a nuclear weapon, and these choices need to be made by the people of the United States. In 1905, for the first time, the federal government started charging for grazing rights and some people still haven’t gotten over it. We have better western landscapes because of the regulation that arose from this. Colorado, for example, provides a clear object lesson of the advantages and disadvantages of public and private ownership. Eastern Colorado is essentially privately owned while western Colorado is far more publicly owned. If the privatization argument is correct, why aren’t the communities in eastern Colorado thriving? What would happen if the federal government turned over these lands? The costs to individual states would be exorbitant, and the states would need to determine how to manage wilderness areas and leases – things that are currently covered by federal regulations. In fact, the pattern is changing in the opposite direction across the East Coast, where more publicly-used spaces are being turned over to the federal government. These lands make our lives better.
Following Cheever’s argument, Pendley provided his rebuttal. According to Pendley, the federal government is a great land manager in Colorado if you don’t mind coal. Pendley asserts that Cheever didn’t read the Enabling Act5 properly and overlooked the provisions that deal with the disclaiming of interest and extinguishment of title. This is because the federal government was going to dispose of the land and give a portion of the revenues to the states. This happened in Illinois in 1829 where the state requested the sale of federal lands to the states, and there is now very little federal land ownership in Illinois. This is the contract theory of a duty to dispose and it is strong when you read the law in its entirety. Pendley asks why is the property clause of the Constitution located in Article IV? If all of this power is given to the federal government, this requirement should be located in Article I of the Constitution. The property clause talks about management and disposal, and disposal is totally unlimited.
Management of federal property is restricted by the word “needful” – that is, land should be held only for enumerated purposes. There was a universal assumption that this land should be disposed of and therefore under the 10th Amendment it should go to the states. In 1845, the U.S. Supreme Court stated that the federal government is a mere proprietor and the land should be used to make sure that new states have the same amount of land as the existing states. Pendley states that Cheever will argue that case law supports the ownership position, but this is not true. Kloeppe v. New Mexico was decided far beyond what was needed on the facts, and every other case cited can be disposed of similarly. There is definitely a duty by the federal government to dispose of public lands.
Cheever then provided his rebuttal. Article IV of the Colorado Enabling Act disclaims rights and titles to all federal land in the territory. Pendley, according to Cheever, discussed a promise to dispose of the federal land – but Cheever asks where is this promise specified and what are the terms of the promise? Additionally, the federal government is the anchor of land title across the country; if the federal government did not have the right to own this land, then the titles to all of our homes are in question. And in New Mexico example that Pendley provides, who was sneaking onto state land? The New Mexico State Inspector of Brands was sneaking onto federal lands to round up wild horses and burros. These wild horses and burros were designated in ownership to the people of the United States, not New Mexico. The federal government plays an enormous role in the management of public lands. The U.S. Supreme Court has held that states could regulate mining claims on federal lands so long as the regulations were not pre-empted. This allows states and the federal government work in partnership. Pollard v. Hagen, a case cited by Pendley, was about the ownership of lands under the tide in the city of Mobile, Alabama. Back when that case was decided, there was a connection between the sale of public lands and slavery and the author of that opinion had an interest in the sale of public lands and included language about that in dicta to the case. Some resources belong in public hands so all people can enjoy them.
The debate ended with a question and answer session that you can see on the videocast of the debate at http://www.law.du.edu/index.php/rmlui/rmlui-academic/carver-colloquium.
Elizabeth Garvin, AICP, is the Colorado Planning Director for LSL Planning, a SAFEbuilt company. She serves on the Regional Board for the Rocky Mountain Land Use Institute.
- The Carver Colloquium is an annual event hosted by the Rocky Mountain Land Use Institute and Jan Laitos, the John A. Carver, Jr. Chair at the University of Denver Sturm College of Law and presented in partnership with the Lincoln Institute of Land Policy. Held each fall term, the Colloquium features two leading legal or planning scholars from the land use, environmental and natural resources law fields. The Colloquium presents divergent or alternative viewpoints on cutting-edge issues in these fields in a point-counterpoint format.
- Kindra McQuillan, “State Bills to Study Federal-to-State Land Transfers,” High Country News (Paonia, CO), April 30, 2015.
- A report by the Congressional Research Office on federal land ownership is available online at https://fas.org/sgp/crs/misc/R42346.pdf.
- The debate was a live event that has been summarized and paraphrased for this article. I’m acting as narrator and providing a play-by-play, but not all of the arguments work as well in this format as they did when they were presented by their proponents. A link to the video webcast of the debate is provided at the end of the article.
- Cheever and Pendley both refer to the Colorado Enabling Act of 1875, the law that brought Colorado into the United States, available from the Colorado State Archives at: https://www.colorado.gov/pacific/archives/government.