Property Clause / Federal Land

[Beavertrapper]

VikingsGuy and Sytes I can see and understand both your points. One how we can not feed the uneducated rants of people twisting the different clauses to benefit them self's and to trying and undermined the great institution of public lands and by engaging in these distorted views with those people we give them more of a voice and foothold for them to spread their view to the larger masses and run the risk of more people thinking people like the Bundy's might be right. However the point that not everyone on hear is as well versed as some on hear about the great history of our public lands and wildlife conservation history in general is also true and that an open and calm discussion on the issues would very beneficial to those uneducated peoples who have not grown up with issues and are wanting to know more about these issues. I would like to give the fallowing example of me I'm under the age of 30 and have lived in the Midwest my whole life I only fur trapped and didn't get involved anything else, until I found Randy's podcast two years ago I knew nothing about the conservation history of American heck I had a copy of Sand County Almanac on my book shelf for 10 + years that I had never read till Randy was talking about it one day and I didn't know public lands existed and if it was not for people getting into discussions about some of these issues I might still never have known. I have learn much about all the different clause's on this forum alone and it has caused me to dig into the issue more myself. So in the end I think we need to find a balance of when to educate people who are eager to learn about these issues and when to not fuel the tolls trying to take down what we old dear. Just my two-cents if it's worth that.

Side note looks like we will see this hashed out in the courts again http://www.foxnews.com/us/2018/01/2...ently-freed-sues-nevada-and-clark-county.html

 

[mountainhawks]

This made me spit water all over my monitor... thank you for that.

 

[widnert]

First post on this forum and jumping into a touchy subject. This whole public lands ownership issue has perplexed me for a while. Even before the Bundy thing. The following, long-winded article is about the best explanation of the public lands issue that I have come across (link to the source is embedded in the title). From a legal perspective, this is actually not fully settled yet, as noted in the article, and I will be interested to see how the court case mentioned above by Beavertrapper turns out. Seems there are still questions.

Personally, from what I understand of the Bundy situation in Nevada, is he should have been paying someone for grazing his cattle on land he did not hold title to. That is pretty basic logic. I'm sure his protest, by not paying, was to make a statement yet, he forgot the core principle that he didn't own the land. He used another's land and perceivedly made a profit from grazing his cattle there - wrong. If he claims it was owned by the State of Nevada, he should have signed his lease with them rather than just turning his cattle loose. They wouldn't offer him a lease. He took his non-payment to an extreme and got pushed in a corner when he couldn't pay the bill. On the other hand, the BLM could have handled the situation a lot better, in my opinion. Strong-arming citizens by using a federal agency's power is not how you deal with disputes. The BLM is a management agency, not a policing agency. But, I wasn't there and I'm not directly involved in the whole circus.

What Does the Constitution Say About Federal Land Ownership?
The “Bundy stand-off” in Oregon at a federal wildlife refuge has triggered (or, rather, re-triggered) questions about the constitutionality of federal land ownership. Westerners in particular question why the federal government should own nearly 30% of the country. In the West, the issue is particularly important. The federal government has title to about half the territory of the eight Rocky Mountain states, the west coast states, and Alaska. The share of ownership in each of those states ranges from about 30% to about 88%. (Exact figures vary according to the mode of calculation.) Westerners who work with the land tend to hold very critical views of how the federal government manages its holdings.

Over a decade ago I became interested in what the Constitution, as the Founders understood it, had to say about federal land ownership. I researched prior writings on the subject. As often happens, I found most of the relevant legal “scholarship” to be of poor quality. Liberal writers baldly claimed that the federal government could own any land it wants to, however it wants to, for any purpose–and that anyone who disagreed was an “extremist.” Conservative writers usually contended that, except for land held by permission of a host state as an “enclave,” the Constitution required the federal government to grant all in-state acreage to the respective state governments. The evidence marshaled for both conclusions was both scanty and weak. The modern Supreme Court has sided with the liberal view. But the Court’s decisions are few and summarily written. They offer almost no useful explanation.

As has happened so often, therefore, I had to begin anew. I studied the Constitution’s text, the records surrounding the Constitution’s adoption, and other materials. From them, I was able to define with a reasonable degree of certainty the scope of the federal government’s power to acquire, retain, manage, and dispose of land. My conclusions were published in Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005). In a nutshell, my findings were:

* Under the Property Clause (Art. IV, Sec. 3, Cl. 2), land titled to the federal government and held outside state boundaries is “Territory.” Federal land held within state boundaries is “other Property.”

* If the host state agrees, the federal government can acquire an “enclave” within the state under the Enclave Clause (I-8-17). This grants governmental jurisdiction to the federal government, but the federal government has to acquire title separately. Washington, D.C. (the most important enclave), for example, is under federal jurisdiction, but much of the land is held by other parties, including individuals.

* The Property Clause gives Congress unconditional power to dispose of property and authority to regulate what is already held. It does not mention a power to acquire.

* Under the Treaty Clause (II-2-2; see also Article VI), the federal government may acquire land outside state boundaries. As long as the area is governed as a territory, the federal government may retain any land it deems best.

* As for acreage (“other Property”) within state boundaries: Under the Necessary and Proper Clause, the federal government may acquire and retain land necessary for carrying out its enumerated powers. This includes parcels for military bases, post offices, buildings to house federal employees undertaking enumerated functions, and the like. It is not necessary to form federal enclaves for these purposes.

* But within state boundaries the Constitution grants no authority to retain acreage for unenumerated purposes, such as land for grazing, mineral development, agriculture, forests, or parks.

* Once a state is created and is thereby no longer a territory, the federal government has a duty to dispose of tracts not used for enumerated purposes.

* In the process of disposal, the federal government must follow the rules of public trust. It would be a breach of fiduciary duty for the feds to simply grant all of its surplus property to state governments. Each tract must be disposed of in accordance with the best interest of the American people. For example, natural wonders and environmentally sensitive areas (such as those now encompassed by the national parks) might be conveyed under strict conditions to state park authorities or (as in Britain) to perpetual environmental trusts. Land useful only for grazing, mining, or agriculture should be sold or homesteaded, with or without restrictions. The restrictions might include environmental protections, public easements, and protection for hunters and anglers.

Most states were admitted to the union pursuant to treaties, agreements of cession, and/or laws passed by Congress. These are called organic laws. They include, but are not limited to, enabling acts and acts of admission. These laws cannot change the Constitution, but they have some interesting ramifications for federal land ownership. That is a topic for another posting.

My article has been cited widely. But it will not surprise you to learn that many reject the conclusions. Liberals are unhappy, because they want to keep much of our territory socialized. Conservative land activists are disappointed because they want the federal government to convey land to the state governments, not dispose of it in other ways. It is significant, however, that no one has even tried to rebut my conclusions or the evidence for them.

The evidence and the details of how I reached my findings are in the article. Since its publication I’ve uncovered additional evidence, and it has generally corroborated my findings.

 

[Irrelevant]

So the author of that article is basically saying that the individual State Enabling Acts are unconstitutional? I find it interesting that although one of our founding fathers, Thomas Jefferson, "purchased" most of the lands in question in west, that somehow it was still unconstitutional. And that over the last 241 years the Supreme Court has somehow "overlooked" this gross infraction seems less plausible than me finding a winning lotto ticket on the street.

 

[VikingsGuy]

* Once a state is created and is thereby no longer a territory, the federal government has a duty to dispose of tracts not used for enumerated purposes.

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This is the controlling point in the long summary and it is entirely unsupported by any actual legal basis, but rather by self-serving unilateral presumptions about what the framers intended or not. There is merit to a textualist approach to constitutional law, an approach I actually prefer, but it can not be properly extended to mere conjecture posed through fictional characters (as the author does in the linked article). It is best not used where the the plain meaning of the words is immediately event, as is the case in this particular provision. This post is an example of lots of words that on the surface may sound logical, with a smattering of unfounded conclusions mixed in for good measure, that appears to create a supposed credible alternate reading but in fact is still just unsupported conjecture.

Also, the frequent and unnecessary and irrelevant labelling of "liberal" or not in the article is simply not helpful in answering the question at hand, and as used in this post is a ridiculous overgeneralization because there are many traditional conservatives who don't have a problem with the standard reading of Property Clause or federal lands. I will take the "conservative values" of Teddy Roosevelt and Barry Goldwater (both supporters of conservation and public lands) over this type of silliness any day. With folks out there like this author getting air time, it gets harder and harder to call ones self a conservative these days.

And of course, for good measure, it ends with the conspiracy theorist's ever popular, "Since its publication I’ve uncovered additional evidence, and it has generally corroborated my findings." that is of course never explained.

These folks deserve all the attention and respect that we owe, moon landing deniers, flat earthers, and homeopathy promoters.

 

[Elkmagnet]

A whole lot of assumptions and generalizations in that opinion piece.

 

[widnert]

Only reason I posted the article above was to make the point that the Public Lands ownership question is not fully "settled". There are open questions that Congress and the Supreme Court need to resolve.

As for the author's credentials that some seem to be trying to knock - it seems he was a Law Professor for 25 years (his career is highlighted below). The article was published in the U.Col. Law Review (in bold type above). So, I "think" this guy may know something about the law. I bet he knows more than all of us. I can't see where he is in favor of one side or the other in this question. He just states what his research shows as the current state of public lands ownership. I took this article as a guide to how to press my representatives in Washington to resolve the questions. Only reason I posted was to try to be helpful to others, not taking one side or the other.

Just because a guy doesn't support your side or the other guy's, doesn't make him wrong.

Rob Natelson is the Independence Institute’s Senior Fellow in Constitutional Jurisprudence and heads the Institute’s Article V Information Center. He was a law professor for 25 years, serving at three different universities. Among other subjects, he taught Constitutional Law, Constitutional History, Advanced Constitutional Law, and First Amendment. He is also the Senior Fellow in Constitutional Jurisprudence at the Montana Policy Institute. Rob is especially known for his studies of the Constitution’s original meaning.

 

[Hunting Wife]

Only reason I posted the article above was to make the point that the Public Lands ownership question is not fully "settled". There are open questions that Congress and the Supreme Court need to resolve.

As for the author's credentials that some seem to be trying to knock - it seems he was a Law Professor for 25 years (his career is highlighted below). The article was published in the U.Col. Law Review (in bold type above). So, I "think" this guy may know something about the law. I bet he knows more than all of us. I can't see where he is in favor of one side or the other in this question. He just states what his research shows as the current state of public lands ownership. I took this article as a guide to how to press my representatives in Washington to resolve the questions. Only reason I posted was to try to be helpful to others, not taking one side or the other.

Just because a guy doesn't support your side or the other guy's, doesn't make him wrong.

Rob Natelson is the Independence Institute’s Senior Fellow in Constitutional Jurisprudence and heads the Institute’s Article V Information Center. He was a law professor for 25 years, serving at three different universities. Among other subjects, he taught Constitutional Law, Constitutional History, Advanced Constitutional Law, and First Amendment. He is also the Senior Fellow in Constitutional Jurisprudence at the Montana Policy Institute. Rob is especially known for his studies of the Constitution’s original meaning.

Thank you for posting the blurb about Mr. Natelson's credentials. Two minutes Googling The Independence Institute and Rob Natelson, and I now have a much clearer picture of the lens through which Mr. Natelson is reading the Constitution....

https://www.alec.org/person/rob-natelson/

I thought I detected a hint of Utah in there. A large number of just as credentialed legal experts unbound to obviously biased organizations have researched the same documents and legalities and have come to a very different conclusion. A century plus of legal precedent, plus untold scores of legal scholars interpreting the same documents.....the preponderance of evidence does not support Mr. Natelson's interpretation.

 

[MattK]

Rob Natelson ran for Governor of MT and was a law professor at the University of MT. I missed having him as a Business Law professor although he did speak to our class. He is an adamant supporter of private property rights. He ran as a Republican. As a side note, he is on a local (Missoula) radio station once a month for an hour. He has spoken at length about this issue but to the best of my knowledge has never explained why the Supreme Court has always sided with the Federal Government's right to own tracts of land in the US. I guess the judges on the Supreme Court have just been wrong for all these years. Another side note, I asked him specifically about corner crossing and his response was that it should be completely legal so long as no damage was done to the property...damage would not be walking on grass.

 

[BuzzH]

Natelson is a partisan hack...and that's on his best days.

 

[TheJason]

I think a hundred plus years of affirmed and reaffirmed court decisions make this issue pretty well settled.

 

[Straight Arrow]

There are open questions that Congress and the Supreme Court need to resolve.

Much like the statement "I’ve uncovered additional evidence, and it has generally corroborated my findings." Easy to say, but what does that mean specifically?! Many constitutional questions have been answered by the one hundred forty some years of SCOTUS finalized legal responses. What are yours?

He is an adamant supporter of private property rights.

Much like the acclaimed scholar Terry Anderson of PERC and the staunch advocates for property rights of UPOM (United Property Owners of Montana), some of the "rights" espoused go far and beyond what can be supported by the Constitution, IMHO as well as that of many others (including SCOTUS). The corollary often asserts that ALL land is better utilized, managed, cared for, and conserved if privatized.

We are blessed to live in a great free nation where you can read, analyze and expound with just about any assertion you wish ... but everyday I thank God that most of such as described above by Natelson gets very little traction due to its slippery rationale and lack of solid base, not withstanding his lengthy legal background and professorial experience.

 

[Sytes]

Widnert, thanks for posting an informative quote from the other side of this topic. I did not take it as your position or, for that matter, your opposition. It is welcomed by most here to understand, debate the topic without attacking the person.

The SCOTUS aspect reminds me of the Roe v Wade issue. Contention resides regardless the years of SCOTUS rulings on this issue and issues with relations.
There is value to comprehend both sides of debates... As any debate club will share as a NECESSITY to best represent their position. Heck, I recall some of my favorite challenges when assigned to debate a side I personally disagreed. Lemons or lemonade... Hell, it was sweet lemonade as I already held a quality understanding of my opponent's potential angles!

I'm in the Atlanta airport, atm... Though I look forward to review of this info.

Thanks again for sharing. Brings value to many here.

 

[dannyb278]

I work with a young guy that was home-schooled. Parents were not exactly scholars. His genetics did him no favors.

That's the most devastating sentence I've read all day. Granted, I just got on the internet

 

[VikingsGuy]

Widnert, thanks for posting an informative quote from the other side of this topic. I did not take it as your position or, for that matter, your opposition. It is welcomed by most here to understand, debate the topic without attacking the person.

The SCOTUS aspect reminds me of the Roe v Wade issue. Contention resides regardless the years of SCOTUS rulings on this issue and issues with relations.
There is value to comprehend both sides of debates... As any debate club will share as a NECESSITY to best represent their position. Heck, I recall some of my favorite challenges when assigned to debate a side I personally disagreed. Lemons or lemonade... Hell, it was sweet lemonade as I already held a quality understanding of my opponent's potential angles!

I'm in the Atlanta airport, atm... Though I look forward to review of this info.

Thanks again for sharing. Brings value to many here.

Just to be clear regarding my own posts. I love a good discussion. I believe you must be able to understand other thoughtful and meaningful counter arguments. I appreciate when folks bring up a great argument I hadn't thought of. However, I believe there are boundaries to this approach. There are views so groundless that discussion and understanding is pointless. I believe that the topic of this posting is one such example. I do not believe there is value understanding the views of moon landing deniers or homeopathy promoters. I welcome informative discussions on both sides on many other issues on this forum, but believe we are best served when we call out some of the BS that passes for "strong" arguments from time to time on the internet - and in my view this is one of those times.

 

[VikingsGuy]

Only reason I posted the article above was to make the point that the Public Lands ownership question is not fully "settled". There are open questions that Congress and the Supreme Court need to resolve.

As for the author's credentials that some seem to be trying to knock - it seems he was a Law Professor for 25 years (his career is highlighted below). The article was published in the U.Col. Law Review (in bold type above). So, I "think" this guy may know something about the law. I bet he knows more than all of us. I can't see where he is in favor of one side or the other in this question. He just states what his research shows as the current state of public lands ownership. I took this article as a guide to how to press my representatives in Washington to resolve the questions. Only reason I posted was to try to be helpful to others, not taking one side or the other.

Just because a guy doesn't support your side or the other guy's, doesn't make him wrong.

Rob Natelson is the Independence Institute’s Senior Fellow in Constitutional Jurisprudence and heads the Institute’s Article V Information Center. He was a law professor for 25 years, serving at three different universities. Among other subjects, he taught Constitutional Law, Constitutional History, Advanced Constitutional Law, and First Amendment. He is also the Senior Fellow in Constitutional Jurisprudence at the Montana Policy Institute. Rob is especially known for his studies of the Constitution’s original meaning.

With 300+ million citizens, nothing is completely "settled" in America. There is always one more opinion, but I think it is fair to suggest some opinions are not worth the time of day, and that many opinions fail to create any real disagreement in the law. This author's writings fit in this category in my judgement.
Regarding credentials lending credence, there are millions of attorneys (including me) and thousands of law professors (including me at times) -- that alone does not convert poor reasoning to good argument. As for law reviews, these are not like scientific peer reviewed articles, law reviews are run by law students who choose topics they find interesting and then heavily edit grammar and formal blue book citation formalities - other experts in the field are not allowed to provide pre-publication critique or reject them. Lot's of meaningless junk can be found in a law reviews (and some good stuff too).

 

[Sytes]

VikingsGuy, I, personally, enjoy your content. A stark difference between yourself, Been Lamb & Long, Katquanna, Straight Arrow, Oak, MtMiller, Nameless Range, etc... Many others. The stark difference is between the likes of those mentioned and as example, the Buzz Hettick type who posess a very knowledgeable understanding of most all I agree though he value s a grandiose, aggressive attack the person attitude. He's a fighter and anyone who wants to discuss a topic he has a different view lines in his sights for personal attacks that exceedany that have been banned from this site... However his strong time spent grants a certain immunity. I care less for his antics though very much value his insight within topic of great value. I'm a leo and deal with the personal attacks daily. While it is annoying to some degree... If it was not for people with his demeanor, we would lack a basis for valued discussion. Only thing, if he only knew how to communicate in the face of adversaries... He would be the model spokesperson. Meh, guess we all need fighters.

I appreciate discussion. Value debate of the topic, enjoy a good laugh though NOT due to one attacking / belittling another.

 

[IlliniFIre]

Not sure if anyone is interested in it or has not seen it already, but I bookmarked this shortly after the refuge standoff.

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

If I recall it was put together at the request of the county commissioners after the Bundy group had come to them looking for support for their cause.

 

[Straight Arrow]

Yet another exclamation point to add to the long series.

 

[BuzzH]

VikingsGuy, I, personally, enjoy your content. A stark difference between yourself, Been Lamb & Long, Katquanna, Straight Arrow, Oak, MtMiller, Nameless Range, etc... Many others. The stark difference is between the likes of those mentioned and as example, the Buzz Hettick type who posess a very knowledgeable understanding of most all I agree though he value s a grandiose, aggressive attack the person attitude. He's a fighter and anyone who wants to discuss a topic he has a different view lines in his sights for personal attacks that exceedany that have been banned from this site... However his strong time spent grants a certain immunity. I care less for his antics though very much value his insight within topic of great value. I'm a leo and deal with the personal attacks daily. While it is annoying to some degree... If it was not for people with his demeanor, we would lack a basis for valued discussion. Only thing, if he only knew how to communicate in the face of adversaries... He would be the model spokesperson. Meh, guess we all need fighters.

I appreciate discussion. Value debate of the topic, enjoy a good laugh though NOT due to one attacking / belittling another.

Sytes, while you wax poetic on these kind of issues, issues that have been settled for a long time, the people you claim to despise for their positions on PLT, etc. are busy trying to sell crazy to the half-witted. Its obviously working if you think their position has merit.

Why? Because you keep the debate going...when there is no need for one. Hashing and rehashing the same tired story line from the far right wingnuts on PLT in regard to the law and constitution should be over. They don't have a case, or they would have made one long ago.

Sitting around pontificating on settled law isn't going to accomplish anything, these guys want what's yours and mine...period. They deserve and will get NO MERCY and no quarter, from me, ever.

I wont apologize to anyone for fighting, with gusto, to keep my public lands in public hands...nobody should.