(See Rebecca Bronemann article in The Spectrum on 5/1/2016) Bryce Gray Feb. 4, 2016
At the heart of age-old disagreements about who should own and manage public lands in Western states — the federal government, states, or local communities — is one key document: the U.S. Constitution. Supporters of transferring federal lands to state or local control, including the armed occupiers of the Malheur National Wildlife Refuge in Oregon, often cite the Constitution, along with original statehood documents, to justify their cause. Here are three of their main arguments, and what mainstream legal scholars have to say about them.
In a Fox News interview two days after the Malheur occupation began in early January, a reporter asked ringleader Ammon Bundy, "How is what you're doing not lawlessness?" He replied: "I think that we have to go to the supreme law of the land to answer that question. And that is that the federal government does not have authority to come down into the states and to control its land and resources. That is for the people to do, and that is clearly stated in Article 1, (Section) 8, (Clause) 17 of the Constitution."
That article, also known as the Enclave Clause, grants the federal government the following power:
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings…”
Scholars I spoke with for this story said it was unclear how Bundy would interpret the Enclave Clause to mean the federal government shouldn’t control public land. Perhaps he interprets the phrase regarding consent of state legislatures to imply that states can decline federal management. But either way, constitutional scholars say Bundy’s interpretation is flat-out wrong. The Supreme Court has consistently interpreted the Enclave Clause not as curtailing federal control of public land, but protecting it. There is a bargaining process between the feds and states to obtain exclusive jurisdiction over an area of public land.
“(The clause) essentially makes (a particular federally-owned) land area an enclave, by giving it a different set of rules for jurisdiction,” says Deb Donahue, a professor of public lands law at the University of Wyoming. She says it has been applied beyond the “ten miles square” area it originally set aside for Washington, D.C.’s creation. When it comes to the West, Donahue says the reference to “needful buildings” has been extended to recreation areas and national parks. For instance, Yellowstone National Park acquired enclave status using that clause.
Legal scholars say Ammon Bundy is not only misinterpreting the Enclave Clause, but also overlooking the Constitution’s Property Clause, which further undermines his argument. The Property Clause, outlined in Article 4, Section 3, Clause 2, states the following:
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”
Although challenged periodically in court, federal application of the Property Clause has been consistently supported in a chain of legal precedent that extends back to 1840. “In an unbroken line of cases, the Supreme Court has upheld federal management of public federal lands under the Property Clause,” says Michael Blumm, a law professor at Oregon’s Lewis and Clark College who specializes in public lands.
Land transfer advocates have also often used the Tenth Amendment to the Constitution in their arguments. The Amendment reads:
“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.”
In a recent entry on his blog, Cliven Bundy — Ammon’s father who was embroiled in another high-profile armed standoff with the government in 2014 — writes that, “In the 10th Amendment, only a very few powers are given by the people to the federal government. All other powers and rights are reserved to the states respectively or to the people.”
But once again, constitutional scholars say that land transfer arguments involving the 10th Amendment ignore the Property Clause, which specifically gives the federal government the ability to manage land use.
“We have 175 years of consistent interpretation of the Property Clause and then we have the Bundys. Which is more persuasive?” asks Blumm.
David Hayes, the former deputy secretary at the Department of the Interior in the Clinton and Obama administrations and a current law lecturer at Stanford University, also points to the Property Clause. “The Tenth Amendment doesn’t come into play because the Constitution explicitly grants power to the Congress to regulate public lands under the Property Clause,” Hayes says.
Bundy supporters and others who believe that federal land should be transferredto state or local control, have also cited agreements called “enabling acts” as evidence of federal overreach. Those acts outlined conditions under which new states were to be admitted to the union, and included agreements concerning public land.
In a 2012 op-ed, the land transfer movement’s most prominent voice, Utah assemblyman Ken Ivory, wrote that the federal government violated an enabling act promise “to ‘extinguish its title’ to the public lands.” In Utah's enabling act, reference to extinguishing titles appears here:
"The people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof ... and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States..."
Most public lands scholars say that state enabling acts actually justify federal land management policies, rather than limit them.
According to Blumm, enabling acts were a product of bargaining between the federal government and territories, prior to statehood. “They would agree on the conveyance of various federal lands to the states for various purposes, mostly having to do with schools, or roads, or state office buildings,” says Blumm. “In all those statehood acts, the states promised they’d leave federal lands alone…. They wouldn’t interfere with federal management.”
Overall, legal experts say the Constitutional rhetoric coming out of the Oregon occupation and the land transfer movement is deeply flawed.
“I think it’s fair to say they speak in generalities about very selective parts of the Constitution,” Donahue says of the Oregon occupiers. “They’re just not accurately representing what the Constitution says and how courts, including the Supreme Court, have construed it for over 200 years now.”
Following last week’s arrest of Bundy and other militants, the matter will be addressed in court. “I think that Bundy got what he wanted: He wanted to get before a judge and make an argument,” says Blumm. “Unfortunately (for him), we live in a world of precedent.”
Bryce Gray is an editorial intern at High Country News