Property Clause / Federal Land

[Sytes]

Would be interested in the interpretations of the Property Clause and our federal lands. Of course with everything there are various impressions though the basis for why there is belief in support and in opposition of the Property Clause related to The federal land.

 

[Straight Arrow]

Having no basis for an interpretation of law, I must rely on others much more well educated and experienced in the study of law. Following is information from Lewis & Clark Law School, Portland, Oregon. Naturally Oregon legal scholars have been studying this topic since the Bundy bunch invaded their state ... and before.

Information from Lewis & Clark Law School, Portland, Oregon:
Since 1830, in a long line of cases the court (US Supreme Court) has consistently ruled that the property clause is "without limitations," meaning the courts will accept congressional decisions concerning the management of public lands. In short, there is no constitutional basis for attacking federal ownership of public lands.
..the Court hardly ever completely reverses prior precedent, and the Court’s interpretations of the Property Clause have been consistent for 175 years. There’s virtually no chance that the Court would choose to overturn this long line of binding authority.

Since 1840, the Court has consistently ruled that the Property Clause (Article IV, section 3, clause 2) gives the government expansive authority to hold and manage public lands. In the 1840 case, U.S. v. Gratiot, the Court decided that the federal government didn’t have to give its lands away; it could instead just lease the minerals, retaining its land ownership. Fifty years later, in 1890, in Camfield v. U.S., the Court upheld federal authority to regulate actions on nonfederal lands that affected adjacent federal lands. In that case, the Court enjoined a private landowner from maintaining a fence on his private lands that in effect enclosed public lands. The Court
stated that the federal government had the authority to decide whether to sell public lands or withhold them from sale as public interest dictated.

Some twenty years later, in 1911, in Light v. U.S., the Court refused to allow a Colorado rancher to graze his cattle on federal public land without a federal permit, even though his grazing was consistent with state law, because the federal government was a “trustee” of the public’s lands. Six years after that, in the 1917 decision of Utah Power and Light v. U.S., the Court applied similar reasoning in deciding that a power company had no right to build a dam on federal lands without federal permission. Nearly a half-century later, in its 1976 decision of Kleppe v. New Mexico, the Court rejected the state’s claim that it could assert superior title to wild horses protected under the federal Wild Horses Act, upholding federal authority to control the taking of wildlife on (and, indeed, off) federal lands as well as control grazing on the federal lands themselves.

In all of these decisions—and several others—the Supreme Court described federal control of public lands and associated resources as “without limitations” and rejected state claims to authorize private action inconsistent with federal rules. In short, plenary federal authority under the Property Clause is about as settled a principle of constitutional law as exists.

 

[Elkmagnet]

Having no basis for an interpretation of law, I must rely on others much more well educated and experienced in the study of law. Following is information from Lewis & Clark Law School, Portland, Oregon. Naturally Oregon legal scholars have been studying this topic since the Bundy bunch invaded their state ... and before.

Information from Lewis & Clark Law School, Portland, Oregon:
Since 1830, in a long line of cases the court (US Supreme Court) has consistently ruled that the property clause is "without limitations," meaning the courts will accept congressional decisions concerning the management of public lands. In short, there is no constitutional basis for attacking federal ownership of public lands.
..the Court hardly ever completely reverses prior precedent, and the Court’s interpretations of the Property Clause have been consistent for 175 years. There’s virtually no chance that the Court would choose to overturn this long line of binding authority.

Since 1840, the Court has consistently ruled that the Property Clause (Article IV, section 3, clause 2) gives the government expansive authority to hold and manage public lands. In the 1840 case, U.S. v. Gratiot, the Court decided that the federal government didn’t have to give its lands away; it could instead just lease the minerals, retaining its land ownership. Fifty years later, in 1890, in Camfield v. U.S., the Court upheld federal authority to regulate actions on nonfederal lands that affected adjacent federal lands. In that case, the Court enjoined a private landowner from maintaining a fence on his private lands that in effect enclosed public lands. The Court
stated that the federal government had the authority to decide whether to sell public lands or withhold them from sale as public interest dictated.

Some twenty years later, in 1911, in Light v. U.S., the Court refused to allow a Colorado rancher to graze his cattle on federal public land without a federal permit, even though his grazing was consistent with state law, because the federal government was a “trustee” of the public’s lands. Six years after that, in the 1917 decision of Utah Power and Light v. U.S., the Court applied similar reasoning in deciding that a power company had no right to build a dam on federal lands without federal permission. Nearly a half-century later, in its 1976 decision of Kleppe v. New Mexico, the Court rejected the state’s claim that it could assert superior title to wild horses protected under the federal Wild Horses Act, upholding federal authority to control the taking of wildlife on (and, indeed, off) federal lands as well as control grazing on the federal lands themselves.

In all of these decisions—and several others—the Supreme Court described federal control of public lands and associated resources as “without limitations” and rejected state claims to authorize private action inconsistent with federal rules. In short, plenary federal authority under the Property Clause is about as settled a principle of constitutional law as exists.

...

 

[VikingsGuy]

Some folks may not like it, but it is a pretty straight forward provision, with pretty consistent and well settled court views. I wouldn't get my hopes up if I was looking for a reversal of the status quo.

 

[Sytes]

It seems a pretty solid Judicially defined precedents. It would be interesting to read a position from the other side of the "Constitutional" debate re: Federal land, our land, rights vs intended State land.

 

[Straight Arrow]

It would be interesting to read a position from the other side of the "Constitutional" debate re: Federal land, our land, rights vs intended State land.

Although I have read many arguments supporting the "other side" of the debate, those were discarded, so I can't cite one offhand. However, the common element in the assertion is an erroneous interpretation of language in the Enabling Act related to the authorization to form individual states and their governmental structures. Typically the dismissal of such assertions follows the recognition that it was claimed by a "Bundy-like" or "Jennifer Fielder-like" citizen with no real Constitutional law credentials and who is obviously applying only their own interpretation of the language in their breast-pocket copy of the US Constitution ... or who has heard the argument from someone of similar ideology and credentials.

 

[VikingsGuy]

While the commerce clause has had a little back and forth lately, even that still is strongly tilted in favor of the Federal government. Something as clearly enumerated as the property clause is far less likely to find a more state friendly result. If that is what you are seeking getting congress to give discretion to the states is your only real path as court reversal seems really unlikely. Not sure there really is another side on this one other than wishful thinking.

 

[Straight Arrow]

Here is a link to an article which may explain Bundy's position. http://www.hcn.org/articles/legal-e...-transfer-advocates-misguided-on-constitution

 

[VikingsGuy]

I am a bit of an originalist and have a 10th Amendment bias, but this “Bundy-like” reasoning is embarrassingly baseless in law and logic. It reminds me of the Gordon Khal crazies I grew up around in ND. They cobble together a string of reasoning that makes no sense in the end but rings true to them. Here is an example of this type of reasoning (recently offered tongue-in-cheek by a Forbes sports writer):

“North Dakota State beat James Madison, 17-13; James Madison beat Weber State, 31-28; Weber State beat Montana, 41-27; Montana beat Idaho State, 39-31; Idaho State beat Nevada, 30-28; Nevada beat Hawaii, 35-21; Hawaii beat UMass, 38-35; UMass beat BYU, 16-10; BYU beat UNLV, 31-21; UNLV beat Fresno State, 26-16; Fresno State beat Boise State, 28-17; Boise State beat Troy, 24-13; Troy beat LSU, 24-21; LSU beat Auburn, 27-23. And, of course, Auburn destroyed Alabama.

Ergo, North Dakota State is much, much better than Alabama. It’s not even close.”

Stuff like this is clearly false, but it is tantalizingly “logical” to the true believer.

 

[Whiptail]

Nearly a half-century later, in its 1976 decision of Kleppe v. New Mexico, the Court rejected the state’s claim that it could assert superior title to wild horses protected under the federal Wild Horses Act, upholding federal authority to control the taking of wildlife on (and, indeed, off) federal lands as well as control grazing on the federal lands themselves.

In all of these decisions—and several others—the Supreme Court described federal control of public lands and associated resources as “without limitations” and rejected state claims to authorize private action inconsistent with federal rules. In short, plenary federal authority under the Property Clause is about as settled a principle of constitutional law as exists.

I'm not sure I understand this statement. I thought wildlife was (nearly)completely controlled by the state.

 

[Straight Arrow]

...wildlife was (nearly)completely controlled by the state.

Not if a federal law, act, or other authority is contrary to the state law or authorization. This is something often discussed with regards to the federal Supremacy Clause which by the US Constitution places the "supreme" law of the land with the federal government. The case cited above is the example of the federal Wild Horses Act overriding any New Mexico state law or action. Another widely discussed example is the Endangered Species Act, which is a federal act enacted by our representative democratic process in Congress and which I'm sure you realize impacts each and every state holding endangered species.

So, although each state is entrusted with the management and "control" of the state's wildlife on behalf of the citizens of that respective state, it is in concert with any federal laws, acts, or "controls" which may exist.

 

[Sytes]

This has been an interesting review. Of course all attempts to keep this as objective as possible is a challenge this day and age however, it is a large step ahead of someone proclaiming, "Not sure what part of the Property Clause is unclear!"...

I may empathize with this generalization of the Property Clause however, to avoid the current KoolAid flavor of the week, I value a more articulated review beyond such vague statements. His/her comment is more a "Raah, Rah!", pom-pom type comment and not one to support those interested in the bedrock foundation of the issues supporting and opposing such views.

I would rather dig into what an enemy thinks than those within the pep rally have to share...

In truth, I believe there is some truth within those who believe the Property Clause and the Enclave Clause lead to a State owned and managed sovereignty of all land within it's borders... It appears to have evolved to our (Pro Fed Land / OUR land) interests over the past century.

Another important piece of evidence is the Northwest Ordinance, which Congress, under the Articles of Confederation, enacted as the Constitutional Convention was meeting, and which the First Congress reenacted after the Constitution was ratified. This statute established the territorial government for the land comprising what is today the states of Ohio, Indiana, Michigan, Illinois, and Wisconsin. James Madison and other leaders at the Convention thought that the Articles of Confederation did not contain an adequate source of power to sustain the Northwest Ordinance. The Property Clause was designed to remedy that defect. This suggests that the Framers intended the Property Clause to be broad enough at least to constitutionalize the provisions of the Northwest Ordinance.

The Northwest Ordinance included a number of provisions respecting the governance of the new territory that would have to be described as pure police-power measures. These include clauses preserving the freedom of religion, prohibiting uncompensated takings of property, and outlawing slavery. Other provisions of the Ordinance addressed the status of federal land once new states were formed from the territory and admitted to the Union. Such states were prospectively prohibited from interfering with the disposal of lands by the United States or with regulations adopted by Congress to secure title to bona fide purchasers, and they were barred from imposing any tax on federal lands.

Taking the structural and historical evidence together, we can infer what may plausibly have been the original understanding of the Property Clause. The Property Clause authorized Congress to exercise a general police power within the territories before they were formed into states. Once states were admitted to the union, however, Congress could exercise full police powers over federal land located in a state only in accordance with the Enclave Clause, that is, only when the land was acquired with the consent of the state in question. As to what "needful Rules and Regulations" Congress could enact respecting federal lands in a state not located in an enclave, the Northwest Ordinance suggests that at least some preemptive federal legislation was contemplated, but only if designed to protect the proprietary interests of the United States. In short, the Framers intended that the police-power theory would apply to federal land located in territories, but that the protective theory would apply to non-enclave federal land located in states. - Thomas W. Merrill Charles Evans Hughes Professor of Law Columbia Law School

 

[Straight Arrow]

Sytes, I'm not sure to what factual historic legal information you refer to as "Raah, Rah ... "pom-pom" type comments, but it was written here not to opine about agreement but to show legal Constitutional precedent, as established by SCOTUS.

'Not clear about the argument which would be based logically and legally on links from the Northwest Ordinance, the Property Clause, and the Enclave Clause. The language quoted from the Columbia Law School does not clearly contradict the present standing of federal public land ownership, nor does it seem to refute the 175 years of legal precedent. If it indeed did so ... then don't you think it would have been considered by the Supreme Court previously?

Seems to be more

tantalizingly “logical” to the true believer

, as VikingsGuy illustrated.

 

[Handlebar]

I am not sure that you can equate those lands under the Northwest Ordinance vs. those lands west of the Mississippi that were directly purchased by the Federal Government. Perhaps they are the same but I am not sure.
In trying to understand what the arguments are from the other side it appears ( a basic claim) that they believe that the Federal government is required to dispose of all lands upon the creation of a state from a territory.

 

[LopeHunter]

I am a bit of an originalist and have a 10th Amendment bias, but this “Bundy-like” reasoning is embarrassingly baseless in law and logic. It reminds me of the Gordon Khal crazies I grew up around in ND. They cobble together a string of reasoning that makes no sense in the end but rings true to them. Here is an example of this type of reasoning (recently offered tongue-in-cheek by a Forbes sports writer):

“North Dakota State beat James Madison, 17-13; James Madison beat Weber State, 31-28; Weber State beat Montana, 41-27; Montana beat Idaho State, 39-31; Idaho State beat Nevada, 30-28; Nevada beat Hawaii, 35-21; Hawaii beat UMass, 38-35; UMass beat BYU, 16-10; BYU beat UNLV, 31-21; UNLV beat Fresno State, 26-16; Fresno State beat Boise State, 28-17; Boise State beat Troy, 24-13; Troy beat LSU, 24-21; LSU beat Auburn, 27-23. And, of course, Auburn destroyed Alabama.

Ergo, North Dakota State is much, much better than Alabama. It’s not even close.”

Stuff like this is clearly false, but it is tantalizingly “logical” to the true believer.

I work with a young guy that was home-schooled. Parents were not exactly scholars. His genetics did him no favors. Used Church-approved home-schooling science materials. His ability to critically reason is zilch as faith explains all to him. He is 100% confident no matter how many of us side-eye each other when he explains away a fact. You may see where this is going.

The Earth is a few 1000 years old. Evolution is a fraud as is carbon-dating and all those fossils that imply evolution were placed here by a supernatural power to trick us. He also craps and never washes his hands and gets "food-poisoning" every few weeks. I only wish my inner evilness was inspired enough to brain-wash him to inspire him to tie helium balloons to a lawn-chair for a righteous journey to honor his Church. Alas, I just pity his robotron ignorance and thank the Lord no one at his Church has told him virgins await if he does some heinous act against another living soul.

 

[Straight Arrow]

... the Federal government is required to dispose of all lands upon the creation of a state from a territory.

Even it were true by virtue of the Northwest Ordinance and other authority, the later agreed upon Enabling Acts which established statehood for each respective state included agreement regarding the federal lands within the respective states. Federal lands within the state remaining as federal, as well as state trust lands ceded to the state, were all part of the statehood deal.

 

[Handlebar]

I agree with you, however my understanding from their view is that that those deals were incorrect as the state should have received title to all lands via the equal footing doctrine

 

[VikingsGuy]

Whenever a modern legal argument is based upon the Articles of Confederation you know you are about to go down a rabbit hole. My favorite is, "because the attendees of the Constitutional Convention of 1787 were only authorized by the states to make amendments to the Articles of Confederation, and they exceeded their authority by drafting a whole new constitution, our present constitution is unlawful and illegitimate therefore laws passed by Congress have no legal effect and we are still governed under the Articles of Confederation."

And then there is the one where because of southern seccession the Constitution was rendered null and void and we have no overarching law and no legitimate federal government today, and the one where the federal income tax is illegal because the 16th amendment language out of congress used commas and the language used for state ratification used semi-colons, and the one where the federal income tax is illegal because Ohio wasn't a state until 1953 and therefore its ratification vote for the 16th amendment was invalid, and . . . . . .

 

[VikingsGuy]

I agree with you, however my understanding from their view is that that those deals were incorrect as the state should have received title to all lands via the equal footing doctrine

The problems for this view are many, but let's start with a straight forward problem. The equal footing doctrine arises from Congressional language used in admitting of the state after 1796, but the Property Clause is a provided for in the Constitution -- the Constitution simply trumps congressional statutes.

 

[Sytes]

Seems the basis is the "policing" of territories as a necessity for the Federal Gov't however with respect to the land once defined as a state, by the earlier content presented, it becomes "State sovereignty" and the Fed's interest is only within what is related interstate activity and military / policing from external threats.