Militia takes over Malheur National Wildlife Refuge headquarters

[Martinjmpr]

The feds ownership of this much land in the west is BS.

Having places to hunt, fish, camp, go 4 wheeling, search for minerals, etc, is "BS?" Having places to shoot outdoors without paying $$ to go to a range is "BS?" Really?

Ever wonder why so many people come from Eastern states to hunt, fish, camp and enjoy outdoor recreation in CO instead of staying in Kentucky or Ohio? It's because we have so much public land that is open for anyone to use.

The states don't have the resources to manage vast areas of public lands, so if they were to get the Federal lands they'd most likely sell it to a private owner who would put up a fence and a "no trespassing" sign.

Call me crazy but I like outdoor recreation.

BTW I'm not saying I agree with everything the Federal government does, not by any means. But I've noticed that a lot of the people who rail against federal ownership of property in the West are people who live in cities and don't engage in outdoor recreation. I've talked to people visiting from other countries and they are amazed that we can just drive out to the middle of a National Forest or BLM land and camp wherever we want, without a permit, without paying a fee or anything.

Over in Europe, just to use one example, there are very few forests or unoccupied lands that are open to anyone. Most are under private ownership and behind a locked gate.

Even in our own country, people I knew who wanted to hunt in the Carolinas usually ended up joining a "hunting club" and only hunting on club property because the few public lands open for hunting were so overcrowded with users.

Our public lands are an amazing treasure and well worth protecting.

[hollohas]

I became interested in the constitutionality of Federal land ownership during the Bundy Ranch standoff.  I'm paraphrasing, but they had said they didn't believe they had any obligation to pay the Feds for using the land for grazing in part because they didn't think the Feds had the Constitutional authority to own it.  The Bundys did pay the fees to the county however.  This struck me as wrong in part because of the Property Clause.  I was familiar with it at the time and it was what all the media legal pundits and journalists referred to in their reporting of the standoff.  At the time it seemed to me cut a dry, the Feds CAN own land. 

I read some of the letters written by the Bundys arguing their case.  They didn't give much detail explaining why the government shouldn't own land, but it was enough to encourage me to research it further. 

This subject is rather hard to research because it really wasn't discussed much in any of the Founders' writting as far as I've seen.  Normally one can use the Federalist and Anti-federalist papers for reliable insight regarding what the Founder's intention was.  Or, the Constitutional Convention debate records are a very good source as well.  Federal Land ownership really doesn't appear much in those documents.  But here are the arguments as I worked through them...

First, is the arguement that the Property Clause only applied to territories.  That, I think, is a pretty loose argument.  Not much to go on there.  I think it's fairly clear that all property is included in the Property Clause. 

Then there is the argument that the ownership of property is not part of the Article 1, Section 8 Enumerated Powers and therefore the Federal Government has no Constitutional authority there. This is pretty loose as well.  Section 8, Clause 17, called the Enclave Clause covers, Federal property and most people simply understand the fact it's purpose was to establish DC.  But there's more to it...

"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"

Well, there it is, the Constitution says that Congress can own property as territory (prior to the formation of a State) or enclaves (property given/sold to the Feds by a State).

So far, I'm only arguing in support of the notion that the Feds can own land. Nevada for example didn't want to manage all that desolate land so they gave it to the feds. It must be Constitutional then...

But read Section 8, Clause 17 again.  Specifically the last part that says WHAT places Congress can purchase from the States and WHY.  It says "needful"...

That's it.  Sure, there is nothing in the Constitution that prohibits the Feds from owning land, and the Property Clause and Enumerated Powers both make it clear that the Feds have control over land they own (and by relation, have been granted the power to own it).  But what the Constitution does limit, is the Feds ability to ACQUIRE land from the States.  That authority is extremely limited by the Constitution. 

This limit on the acquisition of land was so strict that Thomas Jefferson, whom himself authorized James Monroe to negotiate the Louisiana Purchase , had reservations about Congress passing the Treaty without first passing a Constitutional Amendment giving Congress the power to acquire foreign territories.  In 1803 he wrote "The General Government has no powers but such as the Constitution gives it… it has not given it power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this."

He even drafted an amendment himself but Congress disregard it as unnecessary and that it would stale the extremely important land purchase. 

The Feds may have the Constitutional grated power to own land, but the Constitution does not grant them the ability to ever have acquired all this western land from the States it in the first place!

How can anyone argue that the federal ownership of 80-some percent of land within a state border can be classified as "...for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings" It doesn't, plain and simple. The Constitution doesn't say anything granting the Feds power to acquire land for no other reason than to manage, retain, to maintain, to preserve, to hold, etc.

The Feds acquisition of the land from the Westen States was unconstitutional at the very start and therefore their ownership of said land is illegal.

And anyone who has done any reading of the Founders documents can easily see that the Feds being a majority holder of State land is 100% opposite of the idea of state sovereignty and limited Federal government they so cherished.

A very good paper on the subject is titled "Federal Land Retention and the Constitutio's Property Clause: The Original Understanding" written by Robert G Natelson and published in the University of Colorado Law Review. The paper has a wealth of sources to research as well.

PS - I LOVE public lands and use them regularly. Even if the Feds mismanage much of it. But that doesn't change the fact that the Feds have no right to own most of it in the first place. The argument is valid even if public land is desirable. To me the Constitution is black and white and I believe it should be the law of the land above all else. It obviously isn't anymore, but that's the ideal I base my beliefs on.

[theGinsue]

Very good and informative write-up Hollohas. Thank you.

[WETWRKS]

There should be public lands...held and controlled by local governments who actually represent the wishes of the locals. This thing where federal entities hold the land and don't care what the locals want done with it is out of line.

I also read an article (dunno if it is truthful or valid) that pointed at the prosecutor having personal reasons for wanting to attack the Hammond family. Something about one of them testifying against her in a stalking case.

[Rumline]

[snip...]

Our public lands are an amazing treasure and well worth protecting.

Excellent points. There is certainly room to criticize the actions of the BLM in this case and others. However I think saying that there should be no (or substantially less) federally owned land is an absurd notion. Some of my best memories were formed while recreating in the relative freedom of BLM land. The stuff we did would not have been possible if the land was carved up and fenced off by private or corporate interests.

I say keep the BLM in check and advocate for reforms that cut abuses or that benefit outdoorsmen, but don't get rid of the land.

[Gman]

Having the land available for recreation could just as easily be done with state land/state parks.

[HBARleatherneck]

listen

The land you think the government owns for your benefit isnt. Its a checkerboard of land across entire states that you have no access to. It is not parks for the most part. It is sections of land (640) strung together or just in the middle of a hard working rancher or farmers land. The government then rents that land out. So a rancher or farmer then basically has no choice but to rent it or someone else will. Of course that other person would then be tracking across their land and destroying stuff. Then the rancher or farmer has to jump through hoops and please some piece of shit small time beuracrat to keep using the land. All of this was done to control Americans. Not for your city pleasure. If you like spending time outdoor on land. Buy some. Stop spending your money on city shit and buy some land.

short version. the vast majority of land the government owns in the west is not open to the public. so your theory is wrong. The government was supposed to eventually sell or settle all the land for Americans to own. In 1976 they gave the Blm the power to keep the land forever.




here, this is a picture for you. this is typical of the government ownership of western land. Not a national park or open public area as you are thinking.
I have no problem with National Parks, State Parks, Local parks. Owning most of the land in a state or close to it, I have a problem with. Keep in mind the states lose taxes off the land and that screws over the city people like you.

all it does is break up and allow government control. it doesnt give you any kind of place to go to.

Having places to hunt, fish, camp, go 4 wheeling, search for minerals, etc, is "BS?" Having places to shoot outdoors without paying $$ to go to a range is "BS?" Really?

Ever wonder why so many people come from Eastern states to hunt, fish, camp and enjoy outdoor recreation in CO instead of staying in Kentucky or Ohio? It's because we have so much public land that is open for anyone to use.

The states don't have the resources to manage vast areas of public lands, so if they were to get the Federal lands they'd most likely sell it to a private owner who would put up a fence and a "no trespassing" sign.

Call me crazy but I like outdoor recreation.

BTW I'm not saying I agree with everything the Federal government does, not by any means. But I've noticed that a lot of the people who rail against federal ownership of property in the West are people who live in cities and don't engage in outdoor recreation. I've talked to people visiting from other countries and they are amazed that we can just drive out to the middle of a National Forest or BLM land and camp wherever we want, without a permit, without paying a fee or anything.

Over in Europe, just to use one example, there are very few forests or unoccupied lands that are open to anyone. Most are under private ownership and behind a locked gate.

Even in our own country, people I knew who wanted to hunt in the Carolinas usually ended up joining a "hunting club" and only hunting on club property because the few public lands open for hunting were so overcrowded with users.

Our public lands are an amazing treasure and well worth protecting.

[Martinjmpr]

The Feds may have the Constitutional grated power to own land, but the Constitution does not grant them the ability to ever have acquired all this western land from the States it in the first place!

The Feds didn't "acquire the land from the states." The land where the Western states are located was originally "unorganized territory." Eventually it was "organized" into territories under Federal control with a Federally appointed governor. It had to be this way because there simply weren't enough people to elect representatives. Eventually, after enough people settled there, they elected a territorial legislature, wrote a state constitution and petitioned for admission to the United States as a state.

When the states petitioned for admission, they explicitly disclaimed ownership of federal lands within their boundaries. They did this because they did not have the means of disposing of the land and they were happy to let the Federal government bear that burden (and pay for people to do it.)

Even now, there is no State legislature, to my knowledge, that has any interest in acquiring Federal lands because it would mean that the state would have to come up with an infrastructure to manage it, an infrastructure that would cost their state residents millions or billions of dollars. Yes, there are a few cranks and kooks out there within some of the states who think the states should take over federal lands within the state boundaries, but they are a minority within every Western state and there is zero chance of it happening.

As it is, Western states benefit significantly from public lands because people come from all across the country to use those lands, and the management of those lands is paid for by the Federal government, rather than the residents of low-population Western states.

[Martinjmpr]

I know this will sound mean but...

Look, I get it you are a city person without a clue. (not all city people are clueless, but you sound like it on this topic) The land you think the government owns for your benefit isnt. Its a checkerboard of land across entire states that you have no access to. It is not parks for the most part. It is sections of land (640) strung together or just in the middle of a hard working rancher or farmers land. The government then rents that land out. So a rancher or farmer then basically has no choice but to rent it or someone else will. Of course that other person would then be tracking across their land and destroying stuff. Then the rancher or farmer has to jump through hoops and please some piece of shit small time beuracrat to keep using the land. All of this was done to control Americans. Not for your city pleasure. If you like spending time outdoor on land. Buy some. Stop spending your money on cable tv, starbucks and other gay city shit and buy some land. unless of course you like socialism and want the government to buy you land to recreate on. maybe they could get you a cell phone too.

Nice try but 100% wrong. The "checkerboard lands" only applies to the Federal land grants to the railroads. Essentially, the "checkerboard" lands are those that are within about 20 - 30 miles North and South of the major railroad lines across the US. The Majority - the VAST majority - of Federal land is not checkerboarded at all.

Here is a map of the BLM land in Oregon, in fact, in the Burns area (hoping this site will let me hot link, if not I'll put it on my Photobucket.)



BLM lands are in yellow. Note that the "checkerboard areas" are only a slim strip in the middle. Most of the rest are contiguous.

BTW I studied public land law at the University of Wyoming.

(edited to remove unnecessarily combative language.)

[PugnacAutMortem]

Look, I get it you are a city person without a clue.

When you start out a rebuttal to an opinion like this it completely invalidates any credibility you have. You might as well have written 100 lines of text saying "You're stupid and I'm a jerk". That would have the same informative impact as all of that mess you wrote.