The Mendacious Myth: States’ Rights Lies and Those who Peddle Them
“The sagebrush rebels may have peddled legal theories based on a mendacious myth about the Constitution and federal power. But myths exert great power over the way people understand the world and its conflicts (1).” ~ Fischman & Williamson
What is the lie-laden myth that Utah and many western politicians like Governor Herbert, Senator Lee, Washington County Commission hopeful Victor Iverson, Utah Representative Noel, and pretty much the entire Republican Party are peddling? It is many things but they all fall under the ‘government overreach’ umbrella. The rally cry comes in many forms which includes but is not limited to:
||5. States would use the land differently and better|
||6. The fight to take back federal lands is for the people|
||7. The ‘equal footing doctrine’ means equal economic footing|
||8. Local or state governments have no say or control over land management decisions|
Left to right, top to bottom: Gov. Herbert, Sen. Lee, Victor Iverson, & Rep. Noel
Some argue that the issue of states’ rights and government over-reach is not about fact but about principle (the assumption being that somewhere along the way something unconstitutional happened). That’s possible, but what this statement over-looks, is that laws represent the concrete reality of principles – and the law and supporting facts can be examined.
For example, some claim that if you only look at the legality of the Cliven Bundy case, then yes, he is in the wrong; but, if you look at the principles, then you will see that the federal government is wrong. They state that the federal government “shouldn’t” have passed environmental laws to begin with (this points us back to the underlying assumption). Others assert that Bundy has neither the law nor principle on his side. The question is: Can one be legally wrong but principally right? We all know that laws can be unconstitutional, as can behavior, so how does one determine which is right and which is wrong when the issue is as convoluted at state verses federal power? Thankfully for us, some things can be known.
Since a principle is a primary source or ingredient that forms the basis of something, in this case, what is constitutional, and behavior is limited by law (which upholds constitutional principles), then we have two options to explore: The constitutionality of the law and the constitutionality of the individual, the group, or the state. Since the constitution is used as the ‘source’ or foundation for law in the U.S., let’s start there.
Federal land ownership began when the original 13 states ceded their “western” lands (between the Appalachian Mountains and the Mississippi River) to the central government between 1781 and 1802. Substantial land acquisition in North America via treaties and purchases began with the Louisiana Purchase in 1803 and culminated with the purchase of Alaska in 1867. In total, the federal government acquired 1.8 billion acres in North America.
The U.S. Constitution addresses the relationship of the federal government to lands. Article IV, § 3, Clause 2 — the Property Clause — gives Congress authority over federal property generally, and the Supreme Court has described Congress’s power to legislate under this Clause as “without limitation (2).”
“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.”
Two court cases, Kleppe v. New Mexico and the Sagebruch Rebellion case waged by Nevada, Nev. ex rel. Nev. State Bd. of Agric. v. United States, were both beaten by the Property Clause of the Constitution. But not only that, the ‘equal footing’ doctrine, which is touted as a reason the states should get public lands back on economic grounds, was explained:
“The equal footing doctrine (based on language within Article IV, § 3, Clause 1), and found in state enabling acts, provides new states with equality to the original states in terms of constitutional rights, but has not been used successfully to force the divestment of federal lands. The policy question of whether to acquire more, or to dispose of any or all, federal lands is left to Congress to decide. The doctrine means that equality of constitutional right and power is the condition of all States of the Union, old and new. It does not mean that physical or economic situations among states must be the same (2).”
As for the U.S. government promising they would give all federal lands back to the states; that was never the case, though it may have been the states’ understanding, or standing interpretation. “The initial federal policy generally was to transfer ownership of many federal lands to private and state ownership. Congress enacted many laws granting lands and authorizing or directing sales or transfers, ultimately disposing of 1.275 billion acres. However, from the earliest times, Congress also provided for reserving lands for federal purposes, and over time has reserved or withdrawn areas for such entities as national parks, national forests, and wildlife refuges (2).
Believe it or not, the first direct authority for federal management of these lands, and implicit shift toward ending disposals and retaining lands in federal ownership, was the Taylor Grazing Act, enacted by Congress at the behest of western ranchers. The end of disposals came a few decades later following two laws that were passed in 1964: the Public Land Law Review Commission (PLLRC) and the Classification and Multiple Use Act, which directed BLM to classify lands for retention or for disposal and to manage the lands for multiple purposes, whose recommendations culminated in the Federal Land Policy and Management Act (FLPMA).
FLPMA was passed in 1976 wherein Congress formally declared,
“It is the policy of the United States that the public lands be retained in Federal ownership, unless as a result of the land use planning procedure provided for in this Act, it is determined that disposal of a particular parcel will serve the national interest.”
FLPMA also, however, required more cooperation between federal and local and state governments in regard to land use decisions. In other words, the local and state governments are allowed in the decision making process. This is the right and legal way for local and state officials to address land use plans. It may not win them any political points, but it is the best avenue available. That being said, Congress and the states exercise concurrent, not mutually exclusive, jurisdiction over the public domain. To the extent that the laws of each conflict, federal law is supreme and preempts inconsistent state law.
Back to the divestiture of land by the Federal Government to the states, it began in 1800 in the state of Ohio which led to the establishment of the General Land Office created in 1812 to administer the disposal of federal lands (which as has been stated in previous posts, led to the creation of the BLM).
Congress enacted numerous laws to grant, sell, or otherwise transfer federal lands into private ownership, including the Homestead Act of 1862 and the General Mining Law of 1872. Grants to railroads in the 1870s gave them incentives to create much of the nation’s transportation system. Nearly 816 million acres of the public domain lands were transferred to private ownership between 1781 and 2006.
The federal government also granted 328 million acres to the states, the largest tract given to Alaska. As can be seen, much of the public domain was given back to the states. One of the biggest land grants came in the form of state trust lands, meant to provide funding for schools via revenues made from land development.
State trust land managers lease and sell these lands to generate revenue for current and future designated beneficiaries. Predominantly found in the western United States, 46 million acres of land are currently designated as trust lands and the proceeds from the lease and sale of these lands are distributed into a state’s permanent fund and used for many purposes. In Utah these lands are managed by the State and Institutional Trust Lands Administration (SITLA). From the SITLA website:
“Starting in 1785, the Founding Fathers created a plan whereby territories were granted land before statehood to support schools. In 1894, shortly before Utah became a state, Congress created a land trust including one-ninth of the land of the state to support our public schools. Today, schools still have 3.3 million acres scattered around the state. If these scattered parcels were combined, it would make a parcel of land about the size of the state of Connecticut. These lands are held by the state as trustee for our public schools, which are the beneficiaries (or those that benefit from the proceeds from the trust). The lands are managed by the School and Institutional Trust Lands Administration (SITLA). All net revenue is saved in the permanent State School Fund, which is now over $1 billion. Since 1995, when SITLA was created by the legislature, net revenue has increased from $15 million to about $80 million annually through prudent and profitable management of the lands (3).”
SITLA is very similar to the BLM except in one way (Use of Trust Lands): it is run like a business. In other words, they manage lands for virtually the same purposes, but charge fair market value. For example, fair market value for grazing is $16-$20 a head of cattle on state land, whereas the federal price is roughly $1.30. Politics are what keep the prices at pre-1930s rates on federal land. If Cliven Bundy really had his way, and the lands he grazed were state land, he would be paying upward of 16 times what the government charges. In Utah, SITLA just recently voted to raise grazing prices.
As one author asked, “Why would the commodity interests—ranchers, loggers, et al.—want to own federal lands that already offered such a bounty of subsidies?” The reality is that ranchers did not really want to own the federal lands. Instead, ranchers and their representatives sought to stifle the effects of the 1970s federal legislation increasing environmental restrictions on and competition for the use of the public lands (7). In other words, they didn’t want to share. They did not want equal rights afforded to other stakeholders with interests in the land.
Furthermore, the state of Utah claims it is unfairly being cheated out of economic benefits due to federal lands, but when Grand Staircase Escalante National Monument was designated, the land exchange greatly benefited the state. In fact, one oil and gas parcel acquired by the state in this exchange provided 60% of all state trust land oil and gas revenue in 2006. Furthermore, the United States essentially wrote Utah’s school kids a $50 million check. (4). While the designation at first appeared to be devastating for the state, it turns out, it has been incredibly profitable.
So profitable in fact, that the governor is skimming the first $1 million off the top annually to go into a legal account to sue the federal government for control of federal lands (5). To be clear, $1 million annually is going into a fund to sue the federal government, from profits gained via land the federal government gave to the state of Utah. All of this despite the legislative council stating it is a frivolous and wasteful endeavor. In other words, the legislature’s and governor’s own legal team has advised them that they have a slim to no chance of winning.
So based on this history, and current state of land management, is the federal government acting unconstitutionally? I think not. The dishonest players are the states and local politicians. They know that if they keep peddling this mendacious myth, they will continue to keep their base and continue to gain political points. It is manipulative and dishonest.
But a `states’ rights, un-cooperative federalism, Sagebrush Rebellion, and anti-environmental’ rhetoric certainly pays dividends at the polls, just ask Senator Mike Lee. Mike Lee represented Kane County in their legal battle over road closures and then ran on getting public lands back, and as a result, beat Senator Bennett. Now his natural resource adviser, Victor Iverson, is using the same tactics running for Washington County Commission. It is such a political lottery ticket that federal overreach was the primary theme at the Utah Republican Convention (6). Clearly there is a political incentive to continue these tactics, but let’s not suggest it benefits the citizens.
While we can certainly question the constitutionality of laws and argue constitutional principles, it should not be aimed solely at the federal government. In light of the facts, it appears that not only do the states’ right activists not have the law, the facts, or the constitution on their side, they do not even have the foundational principles they lay claim to. It is time to turn a critical eye toward state and local politicians who are peddling lies, wasting money, and who amount to little more than used car salesmen pushing a sour deal. Their shenanigans are helping no one but themselves.
This is not to say that states should not keep the federal government in check, because they should. But in doing so, their attempts should be justifiable, feasible, and reasonable. Furthermore, they should publicly note and acknowledge current law and legal standing in an act of good faith and honesty. They owe that not just to their constituencies, but to all citizens of all political persuasions who deserve to know the truth. That way the citizenry can be informed and possibly support the state when it deserves it. As of yet, all of the above mentioned seems to be lacking from the Sagebrush rebels’ battle with the federal government.
In the end, it may be time for the federal government to take a cue from such institutions as Utah’s SITLA and allow the market to set prices on land deals and uses. Allowing the market to work may be more equitable for all parties, and may even put money back into the pockets of tax payers via the discontinued use of subsidies. Who knows, maybe then our public lands will make a profit rather than continue to incur a deficit.
***May 10th a Utah county commissioner in Blanding, Phil Lyman, is going to illegally lead an OHV ride through Recapture Canyon in defiance of government overreach. http://www.sltrib.com/sltrib/politics/57890003-90/blm-canyon-ride-lyman.html.csp ****
- not telling the truth; lying.
“politicians and their mendacious spin doctors”
- Synonyms: lying, untruthful, dishonest, deceitful, false, dissembling, insincere, disingenuous, hypocritical, fraudulent, double-dealing, two-faced, two-timing, duplicitous, fictitious, falsified, fabricated, fallacious, invented.
- Antonym: truthful
(2) Federal Land Ownership: http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL34267_12032007.pdf
(3) School Land Trust: http://www.schoollandtrust.org/school-trust/school-lands/
(4) Governor Herbert got it wrong: http://suwa.typepad.com/blog/2011/03/governor-herbert-got-it-wrong-protecting-wilderness-helps-utah-school-children.html
(5) Land Exchange Distribution Account: http://le.utah.gov/lfa/reports/cobi2014/fundinfo/fund_1335.pdf
(6) Combatting federal overreach primary theme at Utah Republican Convention: http://www.stgeorgeutah.com/news/archive/2014/04/27/mgk-combatting-federal-overreach-primary-theme-utah-republican-convention/#.U2PSkld435c
(7) The Story of Kleppe v. New Mexico: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1454&context=facpub
Posted on May 3, 2014, in Nature and the Environment and tagged cliven bundy and federal land, costs of managing public lands, federal government owns federal lands, federal land policy and management act, free market capitalism, government overreach, governor herbert and hb 148, grazing rights, Ken Ivory, Land and Water Conservation Fund, land exchange distribution account, land management, local vigilantism against government, mendacious myth, phil lyman ATV ride, property clause of the constitution, public land, rep. noel, Rob Bishop, senator mike lee, SITLA lands, state takeover of federal lands, state verses federal power, states' rights, taylor grazing act, Utah, utah and sagebrush rebellion, Utah taking public lands, victor iverson and washington county commission, who owns public lands. Bookmark the permalink. 4 Comments.