Federal Land Ownership: Is It
Constitutional?
The ongoing Cliven
Bundy situation in Nevada has raised awareness of the hazards of federal land
management.In Nevada, the federal government owns a stunning 81 percent of
the land. On the land they manage, the feds
are threatening to evict tenants who refuse to pay outrageous fees. Bundy is
the last of a dying breed, the only holdout who hasn’t been driven off
land in Clark County in recent years, land his family has utilized and improved
for nearly a century.
This behavior raises
and important question: Is this how the Founding Fathers intended for the
federal government to manage land when they created the Constitution?
A 2005 University of
Colorado Law Review article by Robert G. Natelson of the Independence Institute
titled “Federal Land Retention and the Constitution’s
Property Clause: The Original Understanding”
attempts to answer that question by carefully
examining the historical record against conservative and liberal
interpretations of the Property Clause of the Constitution.
The article begins by
talking about the case of a Bozeman, Montana native by the name of Casey
Emerson. Emerson wants the feds to cede their land holdings back to the people.
He argues that the feds don’t tend to the land as well as local folks could,
and make blunders that harm the environment and livelihood of Montana
residents. Natelson argues that while Emerson’s opinion doesn’t reflect present
case law, there is a strong historical basis for his argument against the
excessive hoarding of land by the federal government.
This becomes clear
when you examine the core principles that the Republic was based upon. It is
widely recognized that the principles of republicanism and decentralization
were crucial in founding the United States of America, but there were also some
principles that fell by the wayside as time passed. While they aren’t
necessarily acknowledged now, they were considered to be essential for the
continuance of a well-functioning Republic by our predecessors. These
principles are fiduciary government, sympathy and independence.
Fiduciary government
refers to the idea of government officials as “guardians, agents, servants, or
trustees of the people.” Sympathy meant that public officials and private
individuals are meant to share an “identity of interest, rather than conflict
of interest.” Government officials are therefore expected to serve the public
as a whole rather than serve a specific faction or political party.
Independence is necessary to prevent collusion between government actors, to
keep them free from each other and dependent only upon the public. Knowing
these bedrock principles upon which the Republic was founded is key in
understanding the appropriate purpose of federal land management.
Natelson brought up an
example to illustrate how these principles weren’t respected during the
Articles of Confederation era. In the early Republic, an angry band of former
soldiers who felt they weren’t properly compensated stormed Congress. This was
when Congress still operated out of Philadelphia, rather than Washington D.C.
The Congress didn’t have the means to defend itself. Delegates asked Pennsylvania
to send militiamen to help, and the state refused. Although nobody was injured,
this incident was harmful to the principle of independence. The founders did
not want one state to receive preferential benefits over another. They didn’t
want a mob of folks from Pennsylvania intimidating Congress into granting
special favors to people of that state at the expense of others.
The Constitution
therefore allows the federal government to possess land in three forms:
territories, enclaves and other property. Territories referred to land that was
owned by the federal government but had not been formally made into states.
Enclaves referred to land within a state that was owned by the federal
government for essential purposes such as ‘Forts, Magazines, Arsenals,
dock-Yards.’ Other property refers to land holdings for enumerated purposes,
and gives the federal government limited discretion to possess land.
However, the
Constitution does not authorize permanent land-grabs by the federal government.
It authorizes Congress to make “all needful Rules and Regulations” pertaining
to land. ‘Needful’ was a word carefully chosen to indicate that the regulatory
power only expanded to powers specifically enumerated in the Constitution. The
feds were expected to sell off non-essential land and distribute the subsequent
monies in ways that benefited the public good such as paying off the debt or
tax cuts.
The current regime of
federal land management is blatantly unconstitutional. The founding fathers
never intended to create a Republic where the feds could impose draconian fees
on peaceful individuals and force them from the land. As a matter of fact, that
is exactly the arrangement that the Constitution was written to prevent, as it
clearly violates the principles of fiduciary government, sympathy and
independence.
When the historical
record is examined, it makes it abundantly clear that the Republic has gone
awry since the days of the founders. Systematic attacks on the property rights
of Americans have been justified through deliberate misreadings of the
Constitution. This will only be changed when the public wakes up, re-discovers
their rights and takes action against unjust federal power. Natelson’s article
can provide a kick start toward creating a proper understanding of the
Constitution amongst the American people.
Federal lands From Wikipedia, the free encyclopedia
Federal lands are lands in the United States for which ownership is claimed by the U.S. federal government, pursuant to Article Four, section 3, clause 2 of the United
States Constitution.[1] The United States Supreme Court has repeatedly held
that this section empowers Congress to retain federal lands, to regulate
federal lands such as by limiting cattle grazing, and to sell such lands.[2]
As of March
2012, out of the 2.27 billion acres in the country, about 28% of the total was
owned by the Federal government according to the Interior Department.[3]
The United
States Supreme Court has upheld the broad powers of the federal
government to deal with federal lands, for example having unanimously held
in Kleppe v. New Mexico[4] that "the complete power that Congress has
over federal lands under this clause necessarily includes the power to regulate
and protect wildlife living there, state law notwithstanding."[1]
History[edit]
When Texas
was annexed into the
United States in 1845,
it was able to "retain all the vacant and unappropriated lands lying
within its limits".[5]
Endangered
Species Act (16
U.S.C. 1531 et seq.)
Federal Land Transaction Facilitation Act (Baca Act) (P.L. 106-248)
Omnibus
Public Land Management Act (Public Law 111-11)
Taylor Grazing
Act (43
U.S.C. 315 et seq.)
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