Ownership of federal land still unsettled
Re: “Fighting over federal land,” July 27 news story.
Those who contend that the federal government should not own half the land in the West have a better legal case than this article revealed.
The article quoted an “analysis by the University of Utah’s College of Law” saying that the “federal government has absolute control over federal public lands, including the constitutional authority to retain lands in federal ownership.”
In fact, this was not an impartial study by the law school. It was a biased production by two environmental legal activists who work there.
Unfortunately, your article did not quote any offsetting sources.
Here are the facts: The issue of how much land the federal government may constitutionally own is a highly contested one. There are credible legal scholars on both sides. My own 2005 research (published by the University of Colorado Law Review) found that the Constitution granted the federal government wide power to own land, but only for purposes listed in the document. Land used merely for grazing, mining, and the like doesn’t qualify, and the Constitution requires the federal government to dispose of it by sale, transfer to the states, conveyance into trust, or some other method.
Also contested is how to interpret the statutes creating the Western states where most federal land lies. Several of those statutes have wording that strongly suggests a federal promise to dispose of most holdings. When understood in context rather than in isolation, the “disclaimers” mentioned in your article actually support this view.
Moreover, to the extent those statutes do assume perpetual federal land ownership, there are serious questions about their validity. A few Supreme Court cases touch on the constitutionality of federal land ownership, and some assume the federal government may own land for any reason. But those cases are fairly old, they avoid dealing squarely with the evidence, and their approach is different from that used by the Supreme Court today.
So federal land ownership is an issue the court will have to deal with directly. No one should pretend that issue is already settled.