Federal Government right to own land

[Big Fin]

I know some have posted here, and many have argued with me personally, that the Federal Government cannot own land under the Constitution. This is often their reading of such, or taking a spoonfeeding from those adhering to the "Constitution of Convenience" theory promoted by the shirt pocket experts like Ammon Bundy.

I've asked them to show me the court cases supporting their claim. None have yet been produced. Often, it is asked for me to show them court cases affirming such. OK, I send them cases by the dozen. I doubt they even take the time to read them, given such facts might interfere with their theology.

When I provide those cases, these folks claim the judiciary is out of control and has misinterpreted the Constitution. Really, some barstool expert is qualified to disqualify a USSC precedent case and make his own interpretation of the Constitution. Thus my use of the term "Constitution of Convenience" as my way of referring to their hypocrisy that claims the Constitution is Supreme Law, yet the Judiciary powers granted in Article III and explained in painful detail only apply if the Judiciary decisions do not conflict with their religious belief on the matter of Federal Land ownership.

I know many are probably not inclined to read all of these cases. I've read many of them in trying to sort this out, along with many others. I suspect none of the folks pushing the state takeover movement have read them. I suspect in Utah, these cases are considered comic book fiction.

This piece was sent to me and not sure who the author is or the context of his writing, but it is probably the most inclusive short piece I have found that includes many of the important cases that affirmed the right for the Federal Government to own land and to manage in the best interest of US citizens.

January 22, 2016
Memorandum
To: Concerned Citizens of Harney County
From: Michael C. Blumm, Jeffrey Bain Scholar & Professor of Law, Lewis and Clark Law School
Re: KrisAnne Hall and her constitutional interpretations

Rob Bovett of the Association of Oregon Counties asked me to comment on Ms. Hall’s interpretation of the Constitution’s Property Clause and provided me with a video of her unprecedented and badly reasoned interpretation of the U.S. Constitution and the role of judicial review in American law. I am happy to oblige because I fear the consequences if well-intentioned citizens of Harney County are misled by Ms. Hall and her primitive view of the U.S. Constitution and of the American legal system. A self-proclaimed constitutional lawyer who apparently reads no judicial case law, or who completely ignores it, should not inspire any citizen’s trust.

I have taught Public Lands Law for over thirty years and have, in the past, also taught Constitutional Law. I’ve published well over 100 law review articles and a number of books, including three casebooks that are read in American law school classes. So far as I can tell, Ms. Hall has never written an article appearing in a law journal, although she’s produced plenty of what seem to be blog posts. Perhaps her crowded speaking schedule keeps her from finding the time to do the thinking required for serious legal publication.

I have read Professor Suzanne Smith’s critique of Ms. Hall’s attempt at textual interpretation of the Property and Enclave Clauses of the Constitution and wish to associate myself with Professor Smith’s conclusions about Ms. Hall’s utter misreading of the text of the Constitution. Professor Smith’s criticisms are completely apt. Ms. Hall’s interpretation of the text of the Constitution has never been adopted by the Supreme Court, nor any other appellate court of which I am aware, during the last 225+ years. Her interpretation seems to be a fabric of her imagination, not the result of serious legal analysis based on centuries of judicial analysis of the constitutional text.

Professor Smith explained the fallacies of Ms. Hall’s reading of the constitutional text. I want to explain how Ms. Hall ignores the long-settled interpretation of the constitutional basis of the federal government’s authority to own public lands. In fact, Ms. Hall seems to deny the legitimacy of judicial review of the Constitution at all. Judicial review of the constitutionality of statutes has been a bedrock principle of American law since Chief Justice John Marshall’s 1803 decision in Marbury v. Madison, a case almost all students studying American Constitutional Law read. Apparently, Ms. Hall missed that class, for what she suggests is not only a challenge to the legitimacy of the Marbury principle but to the Supreme Court’s role in interpreting the Constitution, a foundational principle of American jurisprudence. She appears to want the citizens of Harney County to be the guinea pigs in her experiment to tear down two centuries of settled judicial precedent. My recommendation is to ignore her legal interpretations. Following them could prove quite costly to her followers (although of course she herself would incur no liability).

There are, it is true, many contested interpretations of the Constitution. The Supreme Court hears numerous such cases each year and often breaks new constitutional ground with its interpretations. But the Court hardly ever completely reverses prior precedent, and the Court’s interpretations of the Property Clause have been consistent for 175 years. There’s virtually no chance that the Court would choose to overturn this long line of binding authority.

Since 1840, the Court has consistently ruled that the Property Clause (Article IV, section 3, clause 2) gives the government expansive authority to hold and manage public lands. In the 1840 case, U.S. v. Gratiot, the Court decided that the federal government didn’t have to give its lands away; it could instead just lease the minerals, retaining its land ownership. Fifty years later, in 1890, in Camfield v. U.S., the Court upheld federal authority to regulate actions on nonfederal lands that affected adjacent federal lands. In that case, the Court enjoined a private landowner from maintaining a fence on his private lands that in effect enclosed public lands. The Court stated that the federal government had the authority to decide whether to sell public lands or withhold them from sale as public interest dictated.

Some twenty years later, in 1911, in Light v. U.S., the Court refused to allow a Colorado rancher to graze his cattle on federal public land without a federal permit, even though his grazing was consistent with state law, because the federal government was a “trustee” of the public’s lands. Six years after that, in the 1917 decision of Utah Power and Light v. U.S., the Court applied similar reasoning in deciding that a power company had no right to build a dam on federal lands without federal permission. Nearly a half-century later, in its 1976 decision of Kleppe v. New Mexico, the Court rejected the state’s claim that it could assert superior title to wild horses protected under the federal Wild Horses Act, upholding federal authority to control the taking of wildlife on (and, indeed, off) federal lands as well as control grazing on the federal lands themselves.

In all of these decisions—and several others—the Supreme Court described federal control of public lands and associated resources as “without limitations” and rejected state claims to authorize private action inconsistent with federal rules. Just this month, the Ninth Circuit Court of Appeals (with jurisdiction over Harney County) threw out a claim of a rancher with a state water right for his livestock, who argued he had a right to have his cattle use federal land to access his water right. The court reiterated the rule of other courts that the existence of state water rights does not affect federal discretion to manage public lands. In short, plenary federal authority under the Property Clause is about as settled a principle of constitutional law as exists. Those who challenge it do so at their own risk.

In the video I saw, Ms. Hall suggested that the equal footing doctrine might be relied upon by those claiming state or county sovereignty to provide some sort of exception or safe harbor from federal liability. This argument has been tried and found wanting in the past. The Supreme Court, in its 1963 decision of Arizona v. California, clearly limited the equal footing doctrine—under which states received an implicit grant of the lands underlying navigable waters at the time of statehood—to submerged navigable riverbeds. The states’ only post-statehood means of obtaining title to federal lands that are not submerged is through express federal grants. Equal footing simply has no applicability to the claims currently been made by the militants occupying Malheur National Wildlife Refuge.

The federal government might choose someday to gift the public’s federal lands to a state or a county, but that is a discretionary, political act—there is simply no law, constitutional or otherwise, demanding that it do so, despite what ideologues like Ms. Hall may contend.
Ms. Hall may be a passionate advocate. But her views on the Constitution and state sovereignty have no basis in constitutional law, except perhaps to those who fought and lost the Civil War. Her suggestion that the Supreme Court lacks authority to interpret the text of the Constitution is not merely inconsistent with the foundational decision of Marbury v. Madison, it was specifically rejected by a unanimous Court when Arkansas challenged a court desegregation order in 1958. In Cooper v. Aaron, the Court resoundingly rejected that states’ rights challenge, forcefully stating that while the Court might not be infallible, its interpretations of the Constitution are binding on the states—and, indeed, the other branches of government.

Those who claim to be for constitutional government, like Ms. Hall and the occupying militants, must be referring to a different constitution and a different legal system than that which I’ve studied and taught for the last forty years. Following them would be, in my opinion, reckless for the citizens of Harney County. I urge you to avoid the time, trouble, expense, and liability of doing so.

 

[sbhooper]

Correct me if I am wrong, but I read that the federal land is under government control, only as a result of hanging on to that land during the switch from territory to statehood. The only way that they can buy land is if the states agree to it.

 

[Gerald Martin]

Timely article. I was just having this conversation....

 

[dcopas78]

Thanks Randy this really helps someone like me who is just beginning to study and read about federal public land administration. There is a lot of information in that letter.

 

[VAspeedgoat]

I personally don't give a rip if its in the constitution or not, I guess I should but I don't. All I care about really is that we the people have it andi want to keep it. That is since its just as much mine as it is every rancher, miner, gov't official and crap hole politician.

That said, Randy, I sure am glad there are guys like you who elloquently and diligently protect this ground. Thank you. I wish we could call you president of Hunt Talk. That way we could all have bumper stickers that say "Randy Newberg is my President"

 

[Big Fin]

Correct me if I am wrong, but I read that the federal land is under government control, only as a result of hanging on to that land during the switch from territory to statehood. The only way that they can buy land is if the states agree to it.

I won't correct you as wrong, as I am not the scholar on such things. I do suspect if you read the cases, you will find that theory to have been argued, and lost, many times.

Do you mind providing the link of where you read that? I would be curious to know its source.

In years of being involved in this issue, I have come to my own conclusions of the strategy being employed. Some super smart legal minds who do not like Federal ownership refuse to litigate this issue. They do not litigate it in the courts because, they are smart, they are attorneys, and they know the outcome will not be in their favor. So, they try to use the legislative route and let the "Federal Government can't own land" narrative continue to fester, even though they know that is not the judicial finding. By letting that narrative fester, it helps build support for their strategy; get it done legislatively.

A perfect example of what I explain above is how the Mountain States Legal Foundation came out last week indicating the sale of public land, not a request to transfer or take over by the states. The MSLF dudes are sharp tacks, all being attorneys. If they thought for a second they could win that case and force divestiture of Federal lands, they would be filing in court immediately. Rather, they help to turn up the legislative volume by saying the Feds should follow the Constitution (as they would like to see it). In doing so, they are not painting themselves as legal idiots by denying what the USSC has held, rather they are lending their considerable legal credibility as an asset to the public relations campaign that is being used in advance of the legislative/Congressional effort soon to come.

I can respect a person who for whatever reason says they do not like Federal ownership of land. Fine, we disagree. What I dislike and have little respect for is when a person pulls the "its un-Constitutional" folly; a piece of patriotic sounding legal fiction that has been defeated time and time again. That tells me the person has not done much, if any, homework on the topic and they really are not interested in a discussion of facts and the Constitution, rather they will use whatever legal fable necessary to convince me that their opinion is fact. It is not fact. The courts have held it to be fiction and don't try to BS me otherwise. Just tell me we have different desires for the eventual outcome of those lands.

I surely don't have all the answers. I can only read the cases, hire attorneys to interpret cases for me, and move forward with a conviction that even if I feel the judiciary at times is not ruling how I would like, if I believe in the Constitution, I must accept some of those judiciary findings as the law whether I like it or not. And that reality is not just a requirement for me to accept as one who adheres to the Constitution, but for all Americans to accept if they say they follow the Constitution.

What I do know is that the plan being laid to dispose of these Federal lands is not a judicial plan; with the Utah legislature being an exception because of the millions attorneys will be making. The plan at this phase is a public relations campaign that is part of a Legislative/Congressional hope to get the lands disposed of at the Congressional level, thus avoiding any legal challenge for doing so.

Unfortunately, poor management of our public lands, defunding the agencies managing public lands, frivolous lawsuits that abuse the ESA/NEPA process, and many other examples we read about, only serve to provide tangible evidence for those leading this public relations campaign that will become a Congressional effort.

 

[Corax]

As various groups have found over the years, if you repeat a lie often enough and loudly enough, it starts to sound like the truth to a lot of people. Especially if someone stands to make money off it.

 

[Recurve62]

Randy, That was a very informative piece. If at any time you are able to determine the author, please post his/her name.

 

[Paul in Idaho]

This document is hosted on the Indiana University Bloomington Maurer School of Law site, at http://www.law.indiana.edu/publicland/files/footing_blurr_memo_malheur.pdf It looks like there might be much more interesting reading and valuable references to be found at http://www.law.indiana.edu/publicland The Blumm memo is introduced in the section "2. History of Public Land Law: Ownership Rights and Obligations" part B.2.A, last paragraph.

Here is the author's profile in a major academic community. https://www.researchgate.net/profile/Michael_Blumm He has 69 published papers listed in his profile there, most of which appear to be of potentially great interest in the public land and wildlife management realm. His faculty bio is at https://law.lclark.edu/live/profiles/250-michael-blumm

He also wrote a column in The Oregonian earlier this month about the Bundy standoff. http://www.oregonlive.com/opinion/index.ssf/2016/01/oregon_standoff_answers_to_que.html

 

[UTAHPUBLICLANDER]

Thanks Big Fin and Paul In Idaho I think this makes a great push back to the unconstitutional argument. We own the land and the federal Gov. Is the trustee. The only way to win an argument is with the facts.

 

[James Riley]

There is also realpolitik and the idea of the sovereign. The U.S. is sovereign, and while the States and Indians have what the law calls "limited sovereignty" that has always struck me as being like limited infinity. LOL!

 

[the nikster]

I am not a scholar. Nor am I familiar with this topic. In fact, I just began paying attention to it about 15 minutes ago.in my attempt to understand what I am hearing, I have a couple of questions.
I have not read the cases throughout nor have I researched the background but, each of the cases seems to argue what the Feds can do with the land they own, not whether or not they own it, am I reading that right?
I know it is our system and it is not perfect but it is the best on this planet. Still, I have to question the fairness of the underlying issue. You cannot ask a landowner if he owns the land legally, nor can you ask another if they have legal claim to the same-obviously they will support their positions.
I am not arguing a side, I am trying to understand. I believe, whoever possesses the land, they have an obligation to see that it benefits THE MAJORITY of Americans. Secondly, they have an obligation to pass the property on in similar or better condition that at the time they came to possess it. Thoughts?

 

[Gerald Martin]

Nick- This topic is in the context of groups calling for land currently under federal management (federal lands held in trust for the citizens of the USA) being transferred to state management and or sale to private individuals. Based on past history, state constitutions, and current social atmosphere it is nearly 100% certain that if a transfer were to take place it would look something like this (Fed->State>Private= No Public Access) within the next generation if not this one.

Not only will it not fix the current fiscal crisis we are facing as some politicians claim, it puts the resources, natural reserves and assets called public lands, that we all have ownership of and access to into the hands of relatively few people who will then benefit from that transfer.

This is not about responsible management. This is about taking from the many, to benefit the few.

BTW- we are not the few in this scenario.

 

[idi1796]

Nick- This topic is in the context of groups calling for land currently under federal management (federal lands held in trust for the citizens of the USA) being transferred to state management and or sale to private individuals. Based on past history, state constitutions, and current social atmosphere it is nearly 100% certain that if a transfer were to take place it would look something like this (Fed->State>Private= No Public Access) within the next generation if not this one.

Not only will it not fix the current fiscal crisis we are facing as some politicians claim, it puts the resources, natural reserves and assets called public lands, that we all have ownership of and access to into the hands of relatively few people who will then benefit from that transfer.

This is not about responsible management. This is about taking from the many, to benefit the few.

BTW- we are not the few in this scenario.

That is a wonderful, easy to follow/understand way of explaining this very tough/complicated (only complicated from all the BS put out there from those who want to "transfer" our public lands) issue. For people who are new to the topic or have never heard about it, I think the words above are a perfect way to quickly bring them into the fold. Thank you.

 

[James Riley]

That is a wonderful, easy to follow/understand way of explaining this very tough/complicated (only complicated from all the BS put out there from those who want to "transfer" our public lands) issue. For people who are new to the topic or have never heard about it, I think the words above are a perfect way to quickly bring them into the fold. Thank you.

Yes, very well stated and succinct.

 

[IlliniFIre]

I know it has been some time since this was a "hot topic", but I finally found the critique that is referenced in the original write up that Fin posted. It is much more in depth and takes a bit more reading. I think it is worth it though.

http://www.co.harney.or.us/PDF_File... issues/Federal Ownership of Public Lands.pdf

 

[Straight Arrow]

sbhooper

Correct me if I am wrong, but I read that the federal land is under government control, only as a result of hanging on to that land during the switch from territory to statehood.

Rhetorical questions: Then how was the Louisiana Purchase transacted? What entity owned that vast tract of North America until territories, then states were formed?

sbhooper, I do think you got it wrong. It seems you are counting all the eggs in the nest (USA) before the chicken (US govt) has even built the nest.