Opposition to federal lands often uses the rhetoric of constitutional law. Permanent federal landownership within the states, it is often said, violates framers’ intent and the equal sovereignty of the western states. Rather than pursuing these arguments in court, opponents of federal land policy often use constitutional law to lend an air of legitimacy to their demands for greater access to federal land. The Utah legislature has been most active in this regard. In 2012, it passed a resolution purporting to require Congress to transfer title to more than thirty million acres to the state. Just last year, it invoked the equal sovereignty argument when it passed a resolution urging President Trump to rescind the Bears Ears National Monument. This constitutional rhetoric seems to have an effect. Trump’s dramatic reduction of the Bears Ears Monument can be seen as a step towards the larger Republican Party platform to “convey certain federally controlled public lands to states.”
In A Historical Reassessment of Congress’s “Power to Dispose of” the Public Lands, which is forthcoming in the Harvard Environmental Law Review, I argue that the arguments against federal landownership are inconsistent with how Congress’s power has been understood throughout US history. My paper details how Congress’s power to permanently own land within the states was repeatedly challenged and vindicated during the 1820s, 1830s, 1910s, 1930s, and 1940s. In sum, the dominant view has always been that: (1) the framers intended to give Congress complete discretion to sell, use, or retain federal land; and (2) because land ownership is distinct from sovereignty over the land, federal land ownership within the states is fully consistent with equal state sovereignty. Although I also discuss cases and founding sources, my paper focuses on the popular understanding of the Constitution throughout the 19th and 20th centuries.
I further argue that outdoor recreation and environmental groups are on solid historical footing when they contend that the federal government should keep US public lands because they are an “American birthright” that “belongs to all of us.” Throughout US history, Congress’s broad power to dispose has always been understood to be limited by a duty to act for the common benefit. Ironically, then, although the opponents of federal land often rely on the rhetoric of constitutional history, such history actually supports federal ownership because it ensures strong stewardship of the public lands for the common good.
This is an important topic, and I am certainly not the only one writing on it. As I was in the final stages of editing, I noticed that Ian Batrum, John Leshy, and Grefory Ablavsky have posted or published very interesting papers on this topic within the last few months as well. I plan to talk more about them in a future post.
What is the big deal if the Federal Government owns the land? I went hiking this past summer on Forest Service land among a bunch of cows and buffalos. Everybody seemed to co-exist. Had to step around cow pies, however. We are fighting over BS here. After nearly a century, most of us will end up in a box called The Monticello anyway. Nobody really owns the land...its all about nothing.
Posted by: Deep State Special Legal Counsel | March 31, 2018 at 10:39 PM