Vermont Law Top 10 Environmental Watch List 2017

Debate Over Ownership of Public Lands

Does the federal government have the constitutional authority to retain ownership of public lands indefinitely?

2016 saw the rise of a lively legal debate over whether the federal government or the states have a superior claim to ownership of one-third of the nation’s lands currently managed by the federal government, including national forests, national parks, and national wildlife refuges. At one time, most of the territory of the United States, apart from the original 13 colonies, was owned by the U.S., and then was sold off or otherwise granted to private firms and individuals. The process of disposal slowed in the 20th century, and in 1976 Congress enacted the Federal Land Policy and Management Act declaring a national policy that the remaining public lands shall “be retained in Federal ownership.”

Pisgah National Forest

Pisgah National Forest. Photo: Adobe Stock

The issue now up for debate is whether the federal government has the constitutional authority to retain ownership of public lands indefinitely, or whether instead the federal government has a legal duty either to transfer the public lands into private ownership or to hand them over to the states. Both sides to the debate agree that no Supreme Court decision directly resolves this important question.

The Commission for the Stewardship of Public Lands, created by the Utah state legislature in 2014, has been the most forceful advocate for the position that the federal government lacks the constitutional authority to retain public lands indefinitely. An elaborate legal memorandum prepared for the commission by a group of distinguished scholars makes essentially three arguments. First, the scholars contend that indefinite public ownership is contrary to the so-called Equal Sovereignty Principle, which holds that all states in the country must be treated as equal in sovereignty, because the federal retention policy treats Utah and other western states unequal in sovereignty as compared to other states with little or no federal lands.

Second, they contend that the federal retention policy violates the Equal Footing Doctrine, which generally requires that new states be admitted to the union with the same rights and powers as the original 13 states; they contend that this doctrine requires that Utah be granted the same dominion over public lands as that enjoyed by some other states.

Finally, the scholars contend that the Utah Enabling Act, by which Utah became a state, represents a “compact” imposing a duty on the federal government to dispose of lands within the state.

The Conference of Western Attorneys General has been the chief advocate for the viewpoint that the federal government can properly retain the public lands indefinitely. The conference principally relies on the Property Clause of the U.S. Constitution, which states that “[t]he Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the territory or other property belonging to the United States.” While conceding that the U.S. Supreme Court has never directly addressed the issue, the conference contends that authority to retain public lands indefinitely is implicit in the language of the clause and the numerous Supreme Court precedents emphasizing the breadth of the federal government’s authority over public lands.

On July 19, 2016, the members of the Conference of Western Attorneys General approved the adoption of a legal memorandum supporting the traditional retention policy by a vote of 11 to one. Thus, the issue splits the western public lands states, with the majority siding with the federal government.

The ownership issue was raised indirectly by the recent criminal proceeding arising from the occupation of the Malheur National Wildlife Refuge in Oregon. Counsel for the defendants sought to defeat the charges on the grounds that the United States lacked the constitutional authority to have ownership of the refuge land. The trial judge said that the ownership debate was irrelevant to the conspiracy charges in the case, and the jury ultimately acquitted the defendants, rendering the ownership issue moot. If the defendant had been found guilty, the ownership issue would likely have been a point on appeal. No doubt this hotly contested issue will make its way to the courts soon in some other case.

A political coda: The official platform of the Republican National Committee calls upon Congress to “immediately pass universal legislation providing for a timely and orderly mechanism requiring the federal government to convey certain federally controlled public lands to states.” Significantly, however, President-elect Donald Trump said several times during the recent presidential campaign that he was opposed to sales or transfers of public lands.