Federal Land Solution

The Utah and Bundy Ranch cases are a reminder of just how constitutionally untenable and corrupting federal ownership is.1/11/18 American Spectator

With President Trump’s recent order to “shrink” two massive federal land grabs in Utah and a shocking turn of events in the Bundy Ranch/BLM controversy, the issue of federal land ownership is back in the news. Both events illustrate how the federal government has used its massive land holdings to control the lives of Americans. And lurking in the background of these events is the constitutionality of federal land ownership, an issue that has been ignored for generations by politicians, the courts, and the media. Indeed, the evidence is fairly clear that our founding fathers did not design the federal government to be America’s largest landowner with all the abuses that entails.

The federal government now has a total of 640 million acres under its control — almost a third of the nation’s land. The majority of land in Nevada, Alaska, Utah, Oregon and Idaho is owned by the feds. In Arizona, California, Wyoming, New Mexico, and Colorado, federal ownership exceeds a third. Indeed, if all 11 Western states were combined into one territory, the feds would own nearly 50% of it. This land is primarily administered by the United States Forest Service (USFS), the National Park Service (NPS), the Bureau of Land Management (BLM), and the Fish and Wildlife Service (FWS). The Department of Defense also owns 20 million acres.

But if liberals had their way, even more land would be seized by the feds. Fortunately, it is unlikely this administration will engage in any state land confiscations. Indeed, Trump’s action to decrease the acreage of the two Utah “monuments” is a good start in rolling back this abuse of federal power. These monuments were created by decree under President’s Clinton and Obama by abusing the narrow intent of the 1906 Antiquities Act. Combined, the two preserves originally encompassed 3.2 million acres, but Trump knocked them down to 1.2 million acres. Not surprisingly, the left went ballistic, but the truth is Trump is the one acting in accord with the Constitution and in the best interest of the people of Utah, and even the environment.

Both of these land grabs were initiated with little or no input from Utah’s civic, political, and business leaders. And, of course, as with most Democrat “environmental” initiatives, cronyism and corruption are evident. For example, Bill Clinton’s Utah land grab — the “Grand Staircase-Escalante National Monument” — placed off-limits all energy development, including the world’s largest known deposit of clean burning coal. Not coincidentally, this proviso also quietly benefited the owners of the world’s second-largest deposit of clean burning coal: the Lippo group, owned by the Indonesia-based Riady family and, of course, large donors to the Clinton Foundation (and huge Clinton donors going back decades). In other words, Clinton crippled America’s energy capabilities in order to enrich his friends and himself. As with nearly everything the Clintons do, their operating principle has remained remarkably consistent: “Big donors first; America last.”

The history of federal land management is not a pretty one. Heavy-handed federal land seizures have been ongoing for decades in coordination with radical environmentalist groups and almost always without the support of state leaders, Native American tribes, and the people who work the land such as miners, ranchers, farmers, loggers, etc. Indeed, a report by the Property and Environment Research Center (PERC), titled Divided Lands: State vs. Federal Management in the West, concluded that “By nearly all accounts, our federal lands are in trouble, both in terms of fiscal performance and environmental stewardship.”

The report says that states “produce far greater financial returns from land management than federal land agencies. In fact, the federal government often loses money managing valuable natural resources. States, on the other hand, consistently generate significant amounts of revenue from state trust lands. On average, states earn more revenue per dollar spent than the federal government for each of the natural resources we examined, including timber, grazing, minerals, and recreation.” Incredibly, states “earn an average of $14.51 for every dollar spent on state trust land management,” while the USFS and BLM “generate only 73 cents in return for every dollar spent on federal land management.”

That’s a 20-to-1 ratio. In other words, the feds couldn’t responsibly manage a garden, let alone the millions of acres they control. No one should be surprised. That’s why Trump’s action on the Utah monuments will be good for Utah, good for the state’s budget, and good for the environment because Utah will manage that land far more efficiently than will the federal government.

But back to the Constitution. Most Americans have no clue what our founders said about federal land management. The Constitution’s Property Clause (Article IV, Section 3, Clause 2) gave Congress the power to dispose of property, but does not mention a power to acquire property. However, under the Necessary and Proper Clause (Article I, Section 8, Clause 18), the federal government was given the power to acquire land but only for the purpose of carrying out its enumerated powers. This would include parcels for military uses, post offices, etc. Nowhere does the Constitution give the federal government the power to retain acreage for unenumerated purposes such as grazing, mineral development, agriculture, forests, or even national parks. This was wisely left up to the prerogative of the states and the people.

Moreover, the Constitution even details what to do with federally owned property inside newly acquired states. It declares that the federal government has a duty to dispose of this land unless it is being used for an enumerated purpose, meaning that all federal land not being used for activities specifically authorized by the Constitution should be transferred back to the states. An in-depth analysis of these clauses by the 10^th Amendment Center can be found here.

At no time did America’s founders ever envision a system of land ownership that granted the federal government ownership of almost a third of the nation’s land. And this is totally logical and consistent with everything the founding fathers wrote and said about federal power. They feared federal power so much they divided it into three branches and did everything they could to protect the rights of states. Our founders knew that widespread federal land ownership would be used to blackmail states and compromise their independence.

Indeed, during the federal convention debates of September, 1787, Elbridge Gerry — the future VP under President James Madison — argued that federal ownership of land “might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience.” Even the Federalists, who advocated a slightly stronger central government, did not favor federal land ownership outside of the Constitution’s enumerated purposes. We know that because they voted to ratify the Constitution with the aforementioned restrictions on federal land ownership.

It is clear that generations of politicians and even federal judges have ignored the constitutional restrictions on federal land ownership. Over the last 150 years, the federal government, using the BLM, USFS, FWS, NPS and even the Department of Defense, has held on to millions of acres that should have been turned over to the states once they joined the union. And the feds have increased this acreage with various seizures over the years, usually under some type of “environmental” pretense. Then they erected a vast array of outrageous regulatory and land use controls over mining, farming, logging, oil exploration, and so forth, in most cases with no input from local governments or the people affected. This abuse has come at the expense of state governance and is a total rejection of Republicanism and decentralized power as clearly advocated by our founders. This is precisely the type of federal abuse many of the Constitution’s signers feared would occur.

Indeed, in the Western states, clashes between federal land management agencies and those who live and work on or near these land holdings are frequent, but the mainstream media often ignores such stories. However, most readers will remember the Cliven Bundy incident, the Nevada rancher who refused to pay $1.2 million in grazing fees to the BLM on grounds the land belonged to Nevada, not to the feds. When the Bureau threatened to seize the ranch in 2014, hundreds of cowboys and militia members poured in from all over the country to defend the property. Fortunately, cooler heads prevailed and the feds backed down. Many Americans were shocked at the appearance of armed citizens, but the reality is that our founding fathers argued in favor of gun ownership precisely for the purpose of resisting government tyranny.

The Bureau of Land Management’s police-state actions at the ranch were recently exposed, thanks to former BLM Special Agent and whistleblower Larry Wooten, whose shocking report details the agency’s complete disregard for the rights of the Bundy family. In his report, which became public in early December, Wooten wrote that “… the investigation revealed a widespread pattern of bad judgment, lack of discipline, incredible bias, unprofessionalism and misconduct, as well as likely policy, ethical, and legal violations among senior and supervisory staff at the BLM’s office of Law Enforcement and Security.”

Wooten wrote that the BLM had photos of Cliven Bundy and Eric Parker on its “arrest tracking wall,” but with x’s marked through their faces and bodies, as if they were to be eliminated. He also reported that the Special Agent in Charge, Dan Love, had boasted that his actions in a previous BLM controversy led to a number of people committing suicide. Wooten’s report details outrageous statements by officials such as, “Go out there and kick Cliven Bundy in the mouth (or teeth) and take his cattle.” And the report says that the agents commonly referred to the Bundys and their supporters as “rednecks,” “retards,” and “douche bags.” One agent even boasted about “grinding” a Bundy family member’s face into the gravel.

There were also descriptive titles given to body cam videos taken of the Bundy ranch, such as “Are you f–king people stupid or what,” “Pretty much a shoot first, ask question later,” and “Shoot his f–king dog first.” Indeed, the Wooten report exposes the agency as full of arrogant do-gooders who think they are better than the rural folks they obviously detest, a mentality similar to the attitudes held by some ATF and FBI agents at Waco and Ruby Ridge. Indeed, Wooten wrote that he thought the Bundy ranch confrontation very well could have turned deadly due to the attitude of the BLM agents. One can just envision the thoughts of these agents: Hey, the FBI and ATF got to shoot civilians at Waco, why can’t we?

This report and more were part of a cache of 3,000 documents that Bundy’s attorneys proved to the court were illegally withheld from them by the BLM and the U.S. Attorney’s office. As a result, on December 20, Judge Gloria Navarro dismissed the case, although Cliven Bundy could be tried again. Two other trials against other Bundy ranch defendants ended in hung juries. Bundy has always maintained that his case was all about Obama’s hatred for those who work the land and by, extension, an out of control BLM that thrives on harassing hard-working Americans. It appears he is correct.

The Wooten report can be read here, but be forewarned: it has descriptions of behavior too obscene to quote here. Trump should not only order the BLM to drop its persecution of Cliven Bundy but, on misconduct grounds alone, he should fire everyone involved with the Bundy case.

Lastly, it should be pointed out that the Bundy confrontation was likely about Democrat cronyism and fundraising. Reports appearing in Bloomberg, Breitbart, and Reuters in 2014 indicated that former Senate Majority Leader Harry Reid had teamed up with Chinese billionaire Wang Yusuo in an effort to create a massive 9,000-acre solar energy farm on the same federal land apparently used by Bundy to graze cattle. And Yusuo’s company, the ENN Group, contributed over $40,000 to Reid over the course of three election cycles. One BLM document makes clear that Bundy’s cattle grazing negatively impacted potential solar farm development on this land.

Although the Chinese deal apparently fell through, at the time the BLM was trying to shut down Bundy’s ranch the deal was very much alive. Incidentally, the BLM has to approve any deal allowing a private company to profit off of its land holdings, but not a problem. The BLM director was Neil Kornze, an Obama appointee and Reid’s former senior adviser. The fix was in.

But not to worry. After the Chinese deal fell apart, Reid began working closely with a company called First Solar on a project called the Moapa Southern Paiute Solar Project, which, again, targets the area Bundy’s cattle grazes on. As reported by the Courtwatcherblog that monitors Reid’s shady solar power/public land dealings: “Harry Reid’s interests are clear. He doesn’t care about public lands, but what he stands to profit off of their sale, no matter if it’s sold to China, Saudi Arabia, Russia, or even South Africa… the facts show Harry Reid’s interests in the Bundy men being in jail, make it a lot easier to grab their land…”

First Solar, by the way, was funded in part by Goldman Sachs, a million dollar Obama contributor. Other investors include Obama bundlers Bruce Heyman and David Heller, two Goldman Sachs executives who served on Obama’s 2008 Finance Committee. Yet another Obama bundler, Paul Tudor Jones, was a major investor in First Solar and First Solar’s CEO, Michael Ahearn, is also a big Democrat donor.

In other words, the effort to close down the Bundy ranch probably had less to do with grazing fees than with Harry Reid figuring out a way to convert cattle grazing land to a solar farm, thereby rewarding Democrat fat cats who in turn fund Democrat politicians. This is what the BLM has become: an agency that facilitates the creation of projects that financially benefit the Democrats.

Trump’s action to shrink federal land seizures is admirable, but there is much more he could do if he really wants to restore the Constitution’s restrictions on federal land ownership. He should abolish the BLM and all other land-managing federal agencies and transfer all their holdings back to the states, included federal preserves and national parks, with the only exception being land needed specifically for military use and federal offices of various kinds. This action would be on solid constitutional grounds. Moreover, the states already have competent land management agencies that can easily, and more efficiently, manage this land.

Certainly there has been litigation over the years involving the constitutionality of federal land ownership but most of these cases feature liberal judges turning themselves into pretzels trying to ignore the plain meaning of the constitution. Typically, these judges managed to find phony “rights” that allow the feds to justify its ownership of a third of America’s land. There’s no doubt any effort by Trump to end the federal government’s illegal land ownership regime would be challenged in the courts but such a case would likely end up in the Supreme Court and there’s a good chance the high court would rule in his favor. There is simply no body of writing by the founders that justify federal control of so much acreage that have absolutely zero nexus to the Constitution’s enumerated powers. It’s that simple.

Aside from restoring proper constitutional restrictions on federal land ownership, such a massive transfer of federal land would do a number of things. First, it would energize the economy of many states. Over the last 50 years, millions of acres of land with potential oil and gas reserves, timber, mining deposits and so forth were foolishly placed off limits by federal land confiscations created by presidential orders or congressional action. The long-running federal war on cattle, farmers, loggers, ranchers, and miners would largely come to an end as state agencies and politicians would be far more accountable to the people who live off these lands.

Secondly, contrary to the inevitable hysteria of the environmentalists, there is little doubt some of this land would become state preserves as the citizens of each state will want to preserve environmentally sensitive land and historic landmarks. And the states will do a better job managing environmentally important land than would federal agencies that take orders from distant bureaucrats in Washington, D.C. The point is, it will be the citizens of each state who, through their legislatures and state agencies, would make the decisions as to how best to manage their own land. 

The National Parks may be a special issue. While they also lack a constitutional basis, they could be transferred back to state control on the condition they continue to operate them as parks. Indeed, states wouldn’t have it any other way since there is much money to be made from the national parks in the way of tourism, camping, hiking and so on.

Most Americans have forgotten this, but the shady tactics of federal land management agencies were a big issue in Ronald Reagan’s 1980 campaign. At the time, the movement of those fighting such abuses was called the “Sagebrush Rebellion,” and this issue propelled tens of thousands of voters to support Reagan’s candidacy. To be honest, though, Reagan was unable to carry out any substantial reforms regarding federal land ownership.

If Trump wants to go down in history as a president who restored the federal government to its proper limited role, then he should revitalize this forgotten section of the U.S. Constitution and transfer all non-enumerated federal land back to the states. Such action will allow states to control their own destinies, create better managed parks and preserves, and create tens of thousands of new jobs by energizing natural resource industries such as oil, natural gas, mining, and timber. This is a perfect issue for him. Be bold, Mr. President, and just do it.

https://spectator.org/trump-needs-to-transfer-all-federal-land-back-to-the-states/