The Big
Lie: Federal ownership of public lands by Hari
Heath
With a series of unconstitutional
takings, beginning almost a century ago, the federal government now claims to
own almost two-thirds of Idaho. Most of that “ownership” is claimed as lands
“administered” by the Forest Service.
This is one of the lies that, having
been told often enough, is now believed to be true. We want to believe in the
sanctity of our national parks, wilderness areas and forest lands. They are a
wonderful public resource. However, the truth is, the federal government is
constitutionally prohibited from owning this type of property within a state.
Political power often leads to
corruption, and in Idaho, like everywhere else, the federal government has
become the very definition of corruption. Just like the native peoples, whose
treaties with the federal government have been broken, much of Idaho's public
lands have been stolen by the Great White Father in Washington, D.C.
Any comparison between
constitutionally formed government and the usurpers in the administrative
regimes which now rule us becomes a study in deceit and deception. Pick any
subject that is “governed” and look into the legitimate constitutional authority
and limitations to govern that subject. Compare these constitutional facts of
life with how government is operated today.
This is also a wonderful study in
how the Hegelian opportunists in the administrative realms find or manufacture
a problem, proclaim themselves to be the solution, and secure a job for life at
public expense. Once a small problem is discovered and they have secured their
position as the solution, these opportunists become well positioned to multiply
the problems they claim to be solving, until an unfathomable depth of
bureaucracy is formed. Today's Forest Service provides just such an example.
In the words of Gifford Pinchot, who
championed his cause and became the first chief of the Forest Service, “the
fundamental idea of forestry is the perpetuation of forests by use.” He said
the federal forest reserves were needed, “rather to help the small man making a
living than to help the big man to make a profit.”
What began as a solution to the
fraudulent schemes of the timber barons of a century ago now prevents many a
small man from making a living, while disease and insects devour accessible
timber. No longer helping the small man, the forest service now requires a
“permit” to travel on many “wild” rivers and wilderness areas, or to park a
vehicle near a cross country ski trail. By administrative edict, they have
recently made it a crime for the public to drive on a majority of the forest
road system.
Through a “test program” called the
“Recreation Fee Demonstration Project” they are applying the thin edge of the
wedge to turn public lands into a private business for bureaucrats. “Four
federal public land agencies have been empowered to test various ways to
provide increased benefits to visitors of public lands through recreation-use
fees,” says the Forest Service brochure, “Our National Forests.”
Whose national forests? How have we
become subjected to these convoluted schemes? Or more importantly, does the
federal government have any business administering public lands within a state?
Let's look at the facts and the history behind the BIG Lie.
The constitutional facts of life
The founders of America drafted the
United States Constitution to form a limited federal government. It was
designed to take care of only those things which were truly our national
business. The state governments or the people were to keep all other powers.
Article One, Section 8, Clause 17, offers the only provision in the Federal
Constitution for federal ownership of land. It provides for the creation of Washington,
D.C. as the seat of the federal government and allows the federal government to
purchase lands in a state with “...the consent of the legislature of the state
in which the same shall be, for the erection of forts, magazines, arsenals,
dockyards, and other needful buildings.”
This is the only kind of property
that the federal government is empowered to own in a state. The federal
government cannot own forest lands. Why? Because no such power has ever been
delegated to it and the Tenth Amendment prohibits the federal government from
assuming any power which has not been delegated to it by the Constitution: “The
powers not delegated to the United States by the Constitution, nor prohibited
by it to the states, are reserved to the states respectively, or to the
people.” This is the first constitutional fact of life preventing federal
public land ownership within a state.
The state of Idaho began as the
Idaho Territory. This federal territory was acquired by a treaty with Great
Britain, popularly known as the Oregon Treaty and from treaties with the Indian
tribes. Most of Idaho was to become Indian reservations until gold and other
valuable interests were discovered. Then the federal government wouldn't keep
its word with the Indians. This caused wars when the federal government imposed
new treaties taking away more native lands. However right or wrong the
treatment of the Indians and their treaties were, the Idaho Territory was
formed and became a federally-held property.
In 1890, Idaho was admitted as a
state in the union and its government was formed by the state Constitution.
Article Ten, Section 4, of the Idaho Constitution says “All property and
institutions of the territory, shall, upon the adoption of the Constitution,
become the property and institutions of the state of Idaho.”
This second constitutional fact of
life conveyed the territorially held lands to the new state.
“The people,” at least the 64 people
who signed the Idaho Constitution, gave up their interest in the public lands
in Article Twenty-one, Section 19, of the Idaho Constitution. That section
states in part: “And the people of the state of Idaho do agree and declare that
we forever disclaim all right and title to the unappropriated public lands
lying within the boundaries thereof ... and until the title thereto shall have
been extinguished by the United States, the same shall be subject to the
disposition of the United States...”
This is the third constitutional
fact of life.
Those 64 people, acting as a
constitutional convention for Idaho, essentially quit claimed “the people's”
interest in the public lands. It is important to remember that the Idaho
Constitution was signed at the convention in August of 1889. Idaho was still a
federal territory then. The title to the unappropriated lands remained with the
federal government until Idaho became a state the following year.
Many things happened when Congress
passed the Idaho Admission Act in 1890. Idaho was admitted into the union as a
state on an equal footing basis with the other states. Congress also “accepted,
ratified and confirmed” the Idaho Constitution in the Idaho Admission Act. Some
public lands were specifically appropriated in the Admission Act, as state
endowment lands for schools and other state purposes.
The other remaining public lands
were not specifically granted to the state for particular purposes.
As a state, Idaho's relationship
with the federal government also changed. Once Idaho was no longer a
federally-held territory, the Federal Constitution imposed new limitations on
the federal government. They were now prohibited from owning non-military
property in the new state, initiating the first constitutional fact of life.
When Congress accepted, ratified and
confirmed the Idaho Constitution, they both conveyed any unappropriated lands
held as property of the Idaho Territory to the new state of Idaho and released
any interest “the people” may have had in those lands to the state, giving the
state clear title to the unappropriated lands. This “extinguished” the United
States title to those lands since the federal government was now prohibited
from owning them and “forever disclaimed” the people's interest in the
unappropriated public lands, bringing the second and third constitutional facts
of life into force and effect.
The beginnings of the Big Lie
So how did we get federal forest
lands in Idaho? Constitutionally, after obtaining the consent of Idaho's
legislature, the federal government can own a fort or a building, but not
public forest lands. Did those in the seat of federal power pay attention to
the truth and abide by the limitations imposed by the Constitution which gave
them the power in the first place? Even though statehood was achieved, the
federal government continued to treat Idaho as if were still a federal
territory.
Just as they did to the Indians, the
federal government would eventually take back much of the lands which became
state property. Using both the hammer of the law and a seemingly benevolent
administration, the Big Lie was forged.
Idaho became a state during the
industrial revolution. While the wheels of industry were rolling in the east,
Idaho was still a relative frontier, with largely untapped natural resources.
Timber and minerals were the main items of industrial interest. Many
industrialists were already capitalizing on the new state's abundance.
As is often the case when greed is a
prime motivator, many of those involved engaged in less than honorable conduct.
A great land grab was underway. Beginning in the Great Lakes region, timber
Barons and speculators had spread their schemes to the Northwest.
Taking advantage of federal programs
to sell land to settlers and homesteaders, the unsavory schemers would use
dummy settlers to file false claims or they would “sponsor” settlers who would
sell the lands back to them soon after they were acquired from the government.
The Timber and Stone Act of 1878
permitted individuals to buy up to 160 acres of timber or stone at $2.50 an
acre provided the land was solely for their own use and they had made no prior
agreement to convey the title to another person. These near give-away programs,
intended to benefit the common man, ended up benefitting the industrialists who
picked up properties at a fraction of their value.
The “solution” to the “problem” had
a two-pronged approach. Prosecutions for land fraud began while a federal
scheme to “reserve” and “administer” these lands and their resources emerged.
Good intentions have paved many a dark highway.
Timber fraud in high places
Oregon was one of the first places
where prosecutions for timber fraud were initiated. An Oregon land ring had
been gobbling up public land in Oregon and California. Former Oregon
congressman Binger Hermann, was then head of the General Land Office, which
sold lands to settlers. Agents discovered a major scandal that led to his
resignation.
He was indicted for burning his
files but was never convicted. Oregon's senior senator John Mitchell was
convicted for taking a bribe. Eventually, a congressman, a U. S. Attorney, a U.
S. Commissioner and three state senators were caught in the scam. Oregon's
other U. S. Senator Charles Fulton was also suspected of being involved in the
land frauds.
In 1907, evidence emerged that
created much suspicion of similar land frauds in Idaho. The Barber Lumber
Company of Wisconsin had obtained 40,000 acres of timberlands in the Boise
Basin through fraudulent schemes that involved well-connected Idaho political
figures.
Among those suspected was Idaho's
Senator William Borah, who had been the attorney for the Barber Lumber Company.
Borah and ten others were eventually indicted. This all occurred during very
“interesting times” in Idaho history. Borah was under indictment for the land
frauds while he was also appointed as a special prosecutor for the murder case
against the miners who allegedly had blown up and killed Idaho's Governor after
the mining wars in the Silver Valley.
The unrest from the mining
confrontations was still a hot issue as Pinchot and Roosevelt doubled the size
of the National Forests, many of them in Idaho.
Good Intentions and the Great Theft
The timber resources of the country
were being cut at a rate that alarmed many people. “America had but twenty
years of timber left,” said Gifford Pinchot. Pinchot said Theodore Roosevelt's
timber policy was to provide “the greatest possible good to the greatest
possible number.”
Such was the cry of the eastern
socialist offering his “solution.” As an aristocrat with a passion for public
service, Pinchot was the architect of Roosevelt's conservation policy and the
force behind its implementation.
Pinchot was educated in Europe and
later at three of America's best private schools. At Yale, he was inducted into
Skull and Bones, the colleges most prestigious secret society. Yale offered no
forestry courses and the profession didn't exist in the United States, so he
enrolled in the French Forest School at Nancy. There he learned that “forestry
is the art of using a forest without destroying it.”
He returned in 1890 to an America
that was obsessed by a “fury of development.” He wrote that America “was
fiercely intent on appropriating and exploiting the riches of the richest of
all continents -- grasping with both hands, reaping what he had not sown,
wasting what he thought would last forever.”
Beginning with almost a billion
acres of forests when the first Europeans arrived, the government had already
given away much of the public lands. Over 150 million acres went to encourage
railroad construction; 4.5 million to promote canal building; 3.5 million to
build wagon roads; 2.25 million as an incentive for river improvement. Almost
100 million acres had gone to settlers under the Homestead Act and millions
more under the Timber and Stone Act.
By 1900, roughly half of those
billion acres had been cut and four-fifths of the remaining timberlands were in
private hands.
There was a genuine problem of
industrial exploitation. Over zealous harvesting to feed the wheels of growth
and expansion left a legacy and a scar upon America's forests. Pinchot had many
sound forest management ideas, which he had demonstrated as the forester for
the 3,500-acre woodland on George Vanderbuilt's Biltmore Estate. Among his
beliefs was “the fundamental idea that forestry is the perpetuation of forests
by use.”
Pinchot's work at the Biltmore
Estate led to his design of a forestry course at Columbia University and a
contract to study the New Jersey forests. He also became involved in New York
politics, campaigning with the Citizens Union for Social Reforms.
The beginnings of our national
forests
In 1876 Franklin B. Hough was
appointed as the first national forestry agent under the Department of
Agriculture. Hough reported to Congress on the condition of American forests.
By 1881 a Division of Forestry was established where Hough continued the study
of America's timber. In 1886 the Division of Forestry was given formal
recognition with Dr. Bernhard Fernow at the helm.
On March 3, 1891, the Forest Reserve
Act authorized the creation of “forest reserves.” In 1896 the National Academy
of Sciences appointed a seven-man National Forest Commission. Presidents
Harrison and Clevelend had already proclaimed almost 20 million acres as forest
reserves but there was no plan or rules to govern their use.
Charles Sargent chaired the
commission and Pinchot became it's secretary. 1897 began the management of the
forest reserves under the Organic Act.
In July 1898, Gifford Pinchot
replaced Fernow as the forester at the Division of Forestry which had grown to
60 employees.
As President Cleveland was about to
leave office he issued proclamations creating 13 new forest reserves, stirring
outrage and protest in the west. During the McKinley administration Pinchot was
appointed to chief forester and traveled throughout the west to appease the
fears of westerners and spread his views of enlightened forest policy.
Enlightened as it may have been
there was no constitutional basis for this federal policy. Pinchot also
consulted with the then New York Governor Theodore Roosevelt on the future of
the state's forests. This began a relationship which developed further when
Roosevelt became president.
Pinchot became very influential with
President Roosevelt and drafted the forestry section of his first state of the
union address in 1901. The Roosevelt-Pinchot forest policy was formulated as
“the fundamental idea of forestry is the perpetuation of forests by use” and
“the forest reserves should be enlarged and set apart forever, for the use and
benefit of our people as a whole, and not sacrificed to the shortsighted greed
of a few.”
Pinchot began to dedicate himself to
a problem. The Interior Department controlled the forest reserves, but had no
foresters, while the Bureau of Forestry in the Agriculture Department had
foresters, but no forests. A bill calling for such a transfer was defeated in
Congress in 1902, so Pinchot conceived the American Forest Congress, a
consorttium of various special interests.
He later admitted that it was
“planned, organized and conducted” by his bureau to transfer power and forests
to his agency.
In 1905 the Transfer Act passed into
law, converting the Bureau of Forestry into the Forest Service and the forest
reserves into national forests administered by the new Forest Service.
Foresters and 86 million acres of national forests were combined in the new
agency with Pinchot at the helm.
The new federal timber barons: Theft
by proclamation
Pinchot became a target of western
politicians who accused him of “Pinchotism.” One Colorado legislator said this
enormous territory of forest reserves is an empire within a republic, ruled by
a despot with as much power as the Czar of Russia.”
The Roosevelt-Pinchot forest program
met fierce opposition in Idaho. 20,336,000 of Idaho's 53,945,000 acres had been
designated as 17 national forests by 1907. Pinchot's plan was taken as a
grievous affront to state sovereignty. Oregon's Senator Fulton introduced an
amendment to the 1907 Agricultural Appropriations Bill which would deprive the
president of any authority to create more national forests in many of the
western states.
The bill passed and needed the
president's signature by March 4 to become law. Without his signature, the
Agriculture Department and the Forest Service would have no funds to operate.
Roosevelt and Pinchot responded by preparing and issuing 32 more proclamations
creating and expanding national forests by March 2. These doubled the area of
the Forest Service to approximately 150 million acres.
The president then signed the
Agriculture Bill which funded the Forest Service and ended, at least
temporarily, the presidential power to proclaim new national forests.
The forest reserves were created by
issuing “Presidential Proclamations.” These executive edicts were not
legislated or approved by the Congress. The Legislature of Idaho gave no
consent for the federal government to purchase these forest lands and federal
government did not actually purchase these “forest reserves.” The Forest
Service only “administers” the forest reserves. This pretended ownership by
administration continues to this day.
Have it both ways?
On the one hand, the federal
government only claims to “administer” these lands, not own them, until, on the
other hand, they want to prosecute people “criminally” for violating Forest
Service regulations. As a matter of established law, “federal criminal
jurisdiction” only exists on property owned by the federal government when the
state has ceded its jurisdiction to the federal government, as the following
courts have ruled:
”A state retains complete and
exclusive political jurisdiction over land purchased by the United States
without the consent of the state or where political jurisdiction has not been
otherwise ceded to the United States by the state.” (US v. San Francisco Bridge
Co., D.C.Cal. 1898, 88 F. 891).
”When United States acquires
property by purchase, consent of state must be secured before United States has
complete jurisdiction over property.” (Hayes v. US, C.A.Kan. 1966, 367 F.2d
216).
”Constitution prescribes the only
mode by which the United States can acquire land as a sovereign power, and,
therefore, they hold only as an individual when they obtain it in any other
manner.” (US v. Penn, C.C.Va. 1880, 48 F. 669).
”When land or other property is
acquired by United States by purchase or condemnation without consent of state
legislature, it would not be entitled to exercise exclusive jurisdiction over
property, as state has retained right to exercise its general police powers.”
(McEachin v. US, D.C.App. 1981, 432 A.2d 1212).
Those who have been unfortunate
enough to receive a citation for violating some federal forest regulation will
find the federal government claims an authority to prosecute them under the
“Property Clause” of the federal Constitution (Article Four, Section 3, Clause
2). The federal government must own the property to invoke the Property Clause,
but when a defendant tries to challenge the federal court's criminal
jurisdiction by demanding proof of federal ownership of the property and
cession of jurisdiction by the state, the federal prosecutor cannot prove
either.
This, however, does not stop the
prosecution of the defendant, as my own experience has shown.
The Big Lie of the federal ownership
of forest lands within a state must be protected. Anyone who attempts to
challenge federal criminal jurisdiction based on the constitutionally
impossible nature of federal forest land ownership will find out what power is
all about. Federal prosecutors will hide the constitutional facts of life while
federal judges ignore them. Truth and justice will be buried to protect the Big
Lie. Absolute power corrupts absolutely. Federal forest lands exist because the
federal powers that be maintain their control by preventing the exposure of the
constitutional facts of life. The truth is there cannot be any National Forest
lands in Idaho. Truth was one of the casualties in the so-called Civil War.
That war was more about states' rights than slavery, and the federal government
has treated the states as mere territories ever since.
Imagine a solution
No, I am not a hegelian opportunist
seeking a job for life as the administrator of yet another “solution,” but
imagine, for a moment, some possibilities. If the constitutional facts of life
were to be recognized we could begin an orderly transfer of the federally held
lands back to the state. By also recognizing the other constitutional facts of
life that limit the size and scope of state government we could shrink down
state government to an honest size. Once state government became affordable
again we could eliminate property taxes. And maybe the sales tax. Perhaps even
income taxes. How? By the proceeds from the vast resources which properly
belong to Idaho.
Two and a half million acres of
state endowment lands fund much of our state schools. The over 34 million acres
of the now federally-held public lands might also fund the rest of the state
and county governments. Instead of property taxes, a portion of the proceeds
from timber, minerals, grazing, recreation and other fruits of the land could
go into a general fund which would be returned to the counties on a per capita
basis. Another portion could fund our state government. Right now the Forest
Service pays 25 percent of the stumpage from timber sales to the counties as
payment in lieu of taxes. What kind of prosperity would result if all of the
stumpage went to an Idaho Public Lands Fund instead?
Many Idahoans are frustrated by the
dysfunctional mandates of current Forest Service management policies. The
Forest Service is congressionally constipated with contradictory mandates which
have given the agency's holdings the less than affectionate title, “the land of
no use.” The original battle cry of the Roosevelt-Pinchot forest policy was
“the fundamental idea of forestry is the perpetuation of forests by use.” Why
not adopt such a policy under state management? This wouldn't mean and end to
our valued wilderness areas. Under an orderly transfer of ownership, the remote
and pristine wonders of our state's natural heritage could become state
wilderness areas. The state could adopt wilderness policies promoting
recreational use and management by nature, while allowing scientific, common
sense, active management of the more accessible and productive public
resources.
Through the inaction of the current
Forest Service, much of the already roaded public lands are being ravaged by
disease and insect infestations. A tinderbox condition has developed from a
century of fire suppression preventing nature's method of thinning the forest.
In the absence of fire, failure to mechanically thin nature's abundance leaves
our forests ripe for catastrophic fires, as forest diseases and insects
generate the fuel.
Many private landowners and loggers
who care about the forest have demonstrated what can be done by working with
nature to “perpetuate the forests by use.” Trees killed by insects and disease
can be turned into valuable timber if they are harvested timely. Often this
results in better forest health, while directing man's consumptive interests to
the bounty of nature's gifts.
The state could develop a
stewardship program where Idahoans could lease or otherwise contract for long
term, low impact, resource management of these state public lands. More than
just a timber sale, stewardship could involve developing an environmentally
sound road system; protection of sensitive areas; wild life habitat
enhancement; active management of the forest for long term productivity, as
well as developing recreational opportunities for the public on each
“steward's” project area. Our many skilled foresters could be employed, working
with the resource stewards as they manage the public lands. This could finally
achieve Gifford Pinchot's original idea for the forest reserves: “to help the
small man making a living, rather than to help the big man to make a profit.”
Time for Action?
Idaho has lost more than the 52,712
square miles of the Big Lie. How much has this great timber fraud taken from
our state by the failure to “use the forest without destroying it.” Mill
closures have plagued the timber industry while disease and insects have a
feast. Many of those in the business of making our natural resources productive
have a dim future while our public lands are being closed to the public, and
their potential is idled.
A few years ago the Idaho
legislature passed a Tenth Amendment Resolution, declaring that the federal
government must live within the bounds of the Constitution.
Was this just more fuzzy wuzzy, feel
good legislation, or did our legislators mean it? Will our state officials act
now to end the Big Lie? Can we begin an orderly transfer of what properly is
state public land? It may take a state Constitutional Amendment to give the
mandate for the management of these lands. The State Department of Lands would
have to be expanded, or another agency created, to fulfill the new mandate, but
government usually doesn't mind getting larger and attaching itself to another
revenue stream.
Many Idahoans have the common sense,
the science and generations of experience to intelligently manage our public
resources. If we demand action, and an end to the Big Lie, perhaps our state
leaders will follow.
Author Hari Heath is a writer and
researcher who once thought he could find truth and justice in the federal
court system. Having disproved that theory, he now seeks to avoid further
contact with the feds.
Hari got into trouble for asking a
Forest Service officer questions about his authority and jurisdiction. That
resulted in some trumped up charges about "obstruction." He could
have paid a $300 fine and been done with it, but since he still wanted answers
to his questions he went to court.
Since peasants are not supposed to
bother royalty with impertinent questions (like asking where the Emperor left
his clothes) the federal judge tried to make an example of Hari with a sentence
of jail time, probation and deprivation of fundamental rights such as his right
to protect himself.
That was more than Hari was willing
to sacrifice to the beast, and so he departed from his family and now lives the
life of a fugitive. Source: http://proliberty.com/observer/20010802.htm From the August 2001 Idaho Observer: The Big Lie: Federal ownership of public lands By Hari Heath
Comments:
Nevada cattle rancher Cliven Bundy’s family has been
grazing cattle on public land near Las Vegas since 1870. The U.S. Bureau of Land Management is
claiming $1 million in grazing fees from Bundy and came close to causing a
revolution. Hundreds of armed volunteers
descended on the property. The Feds set
up a road block and the Feds left, but the legal battle goes on. Bundy pays county and state taxes, but
refuses to pay federal fees. He wants a jury trial to determine his rights. Reporters
claim the real fight is over regional control of water. Some say the Harry
Reid’s son wants the land.
States should pass sovereignty legislation reclaiming
federal land and water and returning all water rights to private property
owners. States should also take over all
reservoirs. Counties should retain water
treatment and distribution without imposing any restriction on property owners
to drill their own wells. State EPDs
should replace the federal EPA. State Legislatures need to prepare to assume
these responsibilities. We continue to
suffer from federal overreach in seizing land and water from private property
owners. Farmers are not allowed to grow
and raise what they want and are subject to having their water turned off. This
has been going on for years to erode our rights.
The Bureau of Land Management Internal Planning document
includes all Western States. See teapartyorg website below:http://teapartyorg.ning.com/forum/topics/complete-federal-land-grab-document-released?commentId=4301673%3AComment%3A2684086
http://api.ning.com/files/LzTY94yzCcJArH*h4paeVDHnfoUIXMvG3Y5GjSrhK7qfn25rR*Y17R6uMGW0rLhWEgwgPQ1*ss9sNqY1wpqF*dUZO7Omo*yK/BLMTreasuredLandscapes.pdf
Norb Leahy, Dunwoody GA Tea Party Leader
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