Blog Archives

Holding the line: Property rights and public lands

Holding the line

“The best thing we have learned from nearly five hundred years of contact with the American wilderness is restraint, the willingness to stay our hand; to visit such places for our souls’ good…”     ~ Wallace Stenger

Teddy Roosevelt and America’s first Forester, Gifford Pinchot, believed that conservation was a cause vital to the United States’ remaining a land of equals. Acting on that belief, they did the unthinkable – they set aside large swaths of the American landscape as public land, designating National Parks, wilderness areas, and wildlife refuges, thus protecting both land and resources from the rich and powerful, the industrialists and capitalists who would “not leave the land as it is, who would only mar it.”

It was anathema to their class and status, both coming from wealthy and privileged Eastern families. The issue wasn’t necessarily class warfare; however; and it wasn’t just a battle for land or money, though those certainly played a part. It was a battle between two different mentalities sprouting from the same root that came to a head over deeply held yet conflicting American principles: the right to property and the right to liberty.

In order to have true liberty, or free-will, one must be on equal footing with everyone else. Inequality diminishes liberty. If one’s right to vote is contingent on owning property and there are laws that say certain groups cannot own property, then those groups are not on equal footing with their fellow countrymen and hence their free-will, or liberty, is hindered. This is an example of unequal treatment under the law in that some are granted privileges while others are excluded from them.

Equality is inherently an issue of access: access to an education, to vote, to own property, to employment, to knowledge and information, to the internet, to medical care, etc. The list goes on and on. Not having access to any of these leaves people in the dark ages.

Unfortunately the principle of property rights has been used as a tool to deny access to others for centuries and its use for those ends is still pursued today. The thing to understand about owning property; however, and this must be emphasized, is that property rights imply the freedom to act. Having title to property amounts to legal proof of ownership; property rights, on the other hand, amount to the owner’s possession of rights to perform certain physical actions on that property (1). In other words, property rights allow or restrict actions depending on whether you are the owner or guest of the property.

When public lands were created and given to the American people, what we got possession of was not the physical land, but the rights to perform certain actions on those lands. We were given access and equal footing with everyone else who was given those rights. It was a radical idea that rivals colonial America’s win against Britain for most unbelievable success story in American history.

But success can be short lived. The same forces working against Roosevelt and Pinchot are alive and well today. The same mentality is trying to take our property rights away, be it to the states, industry, or private citizens. The people pushing this agenda are not only trying to take public lands, they are trying to wrestle away our possession of property rights, and thus access and freedom to perform physical actions on those lands. If they succeed we will lose more than the ability to hunt and fish, to hike and bike, to backpack and kayak; we will cease to be a nation of equals and this is why:

Not everyone will have access to the pristine, natural beauty found on public lands. Places outside the noise and clatter of cities with clean air and water; places of spiritual significance, solitude and space will belong only to those who have access to them. Our ability to escape to cool and quiet alpine air to heal from an angry and violent world or to walk in the footsteps of past generations in places unchanged for hundreds of years will be gone or off limits, open only to those with the money and property rights to be there.

It’s not a partisan issue, though it is the GOP pushing this agenda. If you don’t like the presidential candidates, remember what Teddy Roosevelt was able to do and imagine the opposite. Remember also that 80 percent of Congress is up for re-election. They control the purse strings that can fund or starve management of our lands, as well as the pen to pass laws that undermine or enhance our access to them.

Holding lands in trust for future generations was a great moral issue 100 years ago and it’s still a great moral issue today. Right now, even if we do not own a house, we have property rights to land that grants us access to engage in a host of physical activities where we can feel as at home in them as anyone else.

Most of our public lands exist in the West, and the West has always been synonymous with freedom – freedom to enter what the Irish officer in the British Army, William F. Butler described in 1872:

“The great ocean itself does not present more infinite variety than does this prairie-ocean of which we speak. In winter, a dazzling surface of purest snow; in early summer, a vast expanse of grass and pale pink roses, in autumn too often a wild sea of raging fire.

No ocean or water in the world can vie with its gorgeous sunsets, no solitude can equal the loneliness of a night-shadowed prairie; one feels the stillness, and hears the silence, the wail of the prowling wolf makes the voice of solitude audible, the stars look down through infinite silence upon a silence almost as intense. One saw here the world as it had taken shape and form from the hands of the creator.”

So long as the public keeps vigilant watch over the land, deep pockets of the powerful will not prevail. But keeping watch entails more than using the land for recreation, it presupposes a duty to act as sentries and guardians ready to sound the alarm when under attack. It would be a mistake to assume that our public lands and our access to them will always be there. Nothing in politics is written in stone. In this arena, those who care the most, win.

(1) Foundation for Economic Education, Gary Pecquet. Private Property and Government under the Constitution.



Utah Congressional lawmakers’ land grab agenda violates fiduciary duty to the American public


Snow Canyon Panoramic 1

Utah politicians in particular, western lawmakers generally, and Congress as a whole will be in breach of their fiduciary duty to the American people if they allow Utah and other western states to succeed in their illegal land grab for public lands.

It is often claimed that the federal government is “land grabbing” but the only way for that to be true is if the federal government is grabbing state or private lands. The real culprit in the land grab scheme here is the state of Utah and other western states joining their crusade to take public lands.

There are a lot of claims being made about what the Constitution says, how it should be interpreted (strict or loose), and what the intent of the founders was. The Constitution spells things out explicitly and implicitly, but interpreting it isn’t as simple as many claim.

According to Robert G. Natelson, University of Montana School of Law, “Scholars across the political spectrum agree that for purposes of constitutional interpretation, the legally relevant issue regarding a particular clause of the Constitution is not the original intent of the drafters, but the clause’s objective meaning to the ratifying public.”

Furthermore, he goes on to state that “although in its fundamentals eighteenth century English was the same language we use today, there were many subtle difference, and those differences can deceive. One trying to deduce original meaning, therefore, should possess a good eighteenth century dictionary, a working knowledge of Latin, and access to contemporaneous legal materials.”

In other words, it’s not as straightforward as it sounds and even constitutional scholars struggle with it. Justice Stephen Breyer once said that the “general purposes” behind the constitution – the values underlying it – should assist courts in construing the document.

According to the article, “Federal Land Retention and the Constitutions Property Clause (hereafter referred to as “the article”),” federalists and anti-federalists were surprisingly unanimous in the political values they were trying to promote, and wanted a charter that would realize those values. The Constitution was ultimately a political bargain (the grand bargain) between the American public and soon to be federal government.

The political values unanimously agreed upon and which underlie the Constitution include but are not limited to: 1. Republicanism or popular government under the rule of law, 2. Decentralization or limited federal jurisdiction to enumerated powers, and 3. the ideal of fiduciary government, i.e., that public officials were unanimously seen as “guardians, agents, servants, or trustees of the people.”

There are a lot of loud voices making claims about the government’s responsibility to the people and making claims of the government not working for the people. Right now those claims are largely coming from ranchers, militants, and partial politicians who believe the government (meaning actions by the government they don’t like) is not taking care of them, or not doing their bidding.

But this view of government responsibility is flawed, biased, and narrow in a historical and constitutional context which was heavily influenced by the legal concept of fiduciary responsibility. The ideal of fiduciary responsibility was founded in a strong public trust doctrine which at the time of the founding was meant in a legally binding way as a universal responsibility to act as “guardians, agents, servants, and trustees” for the American public as a whole, not for special groups.

As stated in the article, this meant that “officials were to act with care and loyalty, in good faith, within their instructions, for the general good, and impartially.” The article goes on to say, “If, for example, a legislative body passed a law that benefited some citizens at the disproportionate expense of others, that legislative body violated its duty of impartiality.”

In other words, doing that would be a government breach of trust. And serious breaches were considered ultra vires – or in the language of the constitution, they were not proper and were therefore void. Attempting to wrestle public lands for ranching would be such a breach.

The western attempt to grab public land that doesn’t belong to them is a breach of that trust to the American public. Today we are witness to a block of western lawmakers pushing for an agenda that benefits a small minority at the expense of the majority. Those lawmakers, while they do have a duty to the people of their state, also have a larger duty to the nation and the American public as a whole which they are violating.

The claim being made from the lowest to the highest levels that the federal government is not allowed to own large swaths of public land as stipulated under the enclave clause is false. If we take the Constitution at face value, what we find under the Property Clause is that the government explicitly has the duty to manage and dispose of land. Implicitly, this reveals that the government can own land as long as it is managed according to the enumerated powers of Congress.

While the Constitution does not state that the government “must” dispose of the land, the case could be made. During the drafting of the Constitution there was widespread belief that the government would accrue land either by purchase or through treaties and that it would be disposed of for westward expansion via homesteading and for economic development.

Based on that, one could argue that all public lands should be disposed of to the highest bidders, either individuals or industry, and in the 1700s that might have been appropriate. Over time, however, disposal of land for the benefit of the American people expanded to include many purposes.

That being said, no one could make the claim that the land was supposed to be disposed of to the states. It isn’t stated, implied, or hinted at in the Constitution anywhere.

The founding generation of the Constitution sought to build the nation by land privatization, not through state land holdings. According to the article, “The ratification record suggests that gratuitous transfer of lands to state governments would have been seen as a partial act, and therefore a breach of public trust.”

It goes on to say that, “Value was to be derived from land for the benefit of all Americans, not merely those who lived in the vicinity. During the ratification debates no one suggested deeding western land to new state governments.”

In fact, “Participants in the ratification debates took firm stands against any land disposition that would benefit one part of the nation at the expense of other parts.”

Therefore, nowhere in the Constitution does it say that the federal government is required to dispose of land to the states. To suggest otherwise is a gross misinterpretation of the Constitution.

The Property Clause of the Constitution dealt with territories from which all public lands came to be. The Enclave Clause on the other hand deals with property within established states. There is a huge difference between those two classes of land. In terms of public lands in Utah, those lands never belonged to the state. They were in fact territorial lands owned by the federal government before Utah became a state; therefore, the Enclave Clause has no bearing on them.

Furthermore, the territorial lands within Utah’s borders upon entrance into the Union were forever relinquished to the federal government upon statehood under the Enabling Act of the Utah state Constitution.

The ensuing assault by Utah Congressional and Senate members is a gross abdication of their fiduciary duty to the American public, and their proposed bills: The Transfer of Public Lands Act and this year’s Utah Public Lands Initiative Act are both improper under their duty and therefore ultra vires breaches of the public trust.

These Congress members and politicians are not only attempting to steal land from the American public via their power in Congress, they are usurping the federal government’s role to manage those lands as a trustee and in so doing are violating their own duty as standing Congressmen to do their jobs for the American public and the nation at large.

They cannot point their fingers at the federal government as some distinct entity that they don’t belong to. They cannot cite that the government is abusing its power or not listening to the people without pointing their fingers at themselves. Furthermore, it could be argued that the abuse of power within the government is coming from these very people.

Public land was not meant to be held for unenumerated purposes. “The federal government’s authority to dispose was unlimited (except for trust standards), but its authority to acquire, retain, and manage was not: all the latter functions could be exercised only to serve enumerated powers.” However, Congress has considerable discretion as to how to effectuate enumerated powers, and reasonable exercises of discretion are respected and supported by the public.

Under Congress’s enumerated powers, they have determined over the years that national objectives include environmental concerns, recreational opportunities, wildlife, scientific purposes, economic benefits, and natural resources and have given power to manage the public’s land to land management agencies. That is consistent with their Constitutional powers.

It is outside of Congress’s enumerated powers, however, to act on behalf of special interests or one group (ranchers for example) over others. Their actions regarding public land must consider all Americans.

The Federal Government has a long history of disposing of public lands which includes attempting to give the lands to the states and to ranchers under President Truman, which both entities declined. Things changed in the 1970s however. Under the Federal Land Policy Management Act (FLPMA), disposal guidelines were explicitly spelled out (see link below), which is legally binding today. Like the Constitution, nowhere under FLPMA does it say land must be disposed of to the states.

Congress passed this law under their enumerated powers listed in the Constitution, which means these lands are being managed Constitutionally and within the scope of our form of governance.

Under Constitutional authority, Congress has continued the tradition of making laws that govern the management of public lands in a way that is consistent with ensuring those lands are used and managed as a trust for the benefit of the American public, the nation, and for future generations.

What Utah politicians are doing, if not in outright cahoots with the Bundys’ militant standoff for public lands, is just a smarter version of it and is just as wrong, if not more so because their positions as standing members of Congress requires a high standard of fiduciary duty to the nation.


Federal Land Policy and Mangement Act , Disposal:

Robert G. Natelson, Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005), Available at:



%d bloggers like this: