From Bundy standoffs to Bear's Ears, Antiquities Acts to enclaves, the federal government's ownership and management of land – particularly in the West – is a hot topic these days. While conservatives naturally tend to side with an individual or state in any conflict with the federal government, it's important to understand the legal underpinnings of the various federal actions lumped under the heading of "land grabs." Here are five important points to serve as a primer.
- Uncle Sam is a real estate tycoon. The amount of lands owned and controlled by Uncle Sam is, by all accounts, staggering. The federal government controls an astounding half of all land west of the Rocky Mountains, including 85 percent of Nevada and more than 223 million acres in Alaska.While most of us appreciate the preservation of some lands for recreational and conservation purposes, the problems associated with this much land remaining in federal hands are many. For instance, those who advocate for return of these lands to the states point out that land management policies instituted by distant federal bureaucrats interfere not only with states' ability to use their own resources, but also with their efforts to protect them. One example is federal interference with state efforts to fight forest fires and the overgrowth that causes them. Critics of federal land ownership also blame federal policies for devastating communities by driving out farmers, businesses and industries.
- Presidential designations of "national monuments" are not technically "land grabs." Many conservatives were understandably outraged by former President Obama's "designation" of millions of acres as monuments. But it is misleading to refer to these actions as "land grabs." These designations were made under the authority of the American Antiquities Act of 1906, which only authorizes the president to designate national monuments "situated upon the lands owned or controlled by the Government of the United States." So Obama's actions didn't add acres to the vast federal collection; they just resulted in stricter regulation of the land and more federal expenditures to enforce those regulations.
- Obama abused his power under the Antiquities Act. Point No. 2 notwithstanding, the public is still justified in crying "foul" at these designations. The Antiquities Act specifies that the amount of land the president may reserve as part of a national monument must be "confined to the smallest area compatible with proper care and management of the objects to be protected." Thus, Obama's designations of millions of acres as national monuments are of dubious legitimacy. They are obviously not what was contemplated by the Antiquities Act.
- The Constitution gives the feds limited power to own and manage real estate. Constitutional scholar and former law professor Robert Natelson has explained the extent of federal power to acquire, manage and dispose of land in this easy-to-digest law review article. What's significant for our purposes here is that the Necessary and Proper Clause gives Congress power to acquire and retain the land it needs to carry out its specific, enumerated powers – to build military bases or post offices, for instance. Congress also has the power to regulate and dispose of its land, under the Property Clause in Article IV of the Constitution.But as Natelson explains, "within state boundaries the Constitution grants no authority to retain acreage for unenumerated purposes, such as land for grazing, mineral development, agriculture, forests, or parks." Rather, the United States has a duty to dispose of land not needed for legitimate federal functions once a state is created and that land is encompassed by its boundaries.
- The U.S. can comply with its constitutional duty to dispose of excess land without endangering conservation purposes. As Natelson points out in his article, the federal government must follow the rules of public trust in disposing of land – it must serve the interests of the entire nation. One way it might do this is by conveying sensitive park lands to public entities or nonprofit environmental trusts under strict conditions or restrictive covenants. So don't buy it when the liberals try to sell you on the idea that the transfer of federal land will mean turning natural wonders into shopping malls and parking lots.
Federal hoarding of the American West may be a mere constitutional curiosity to most of us, but it directly impacts many Americans whose livelihoods are rooted in that land – like Cliven Bundy and his sons, who resorted to armed resistance against bureaucrat-imposed grazing regulations on public rangelands. Hopefully, courts will examine these constitutional issues during Bundy's trial later this year.
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