PUBLIC LANDS Public Lands in the West By Hans Poschman Western states are unique in that the federal government owns and manages large portions of the land in every state in the region. The federal government is responsible for managing between 635 million and 640 million acres of land in the United States;1 roughly 592 million of those acres are located in the West. 2 The federal government controls 62 percent of the land in Alaska and 47 percent of the land in the 11 mainland Western states. For comparison, the federal government controls only 4 percent of the land in the remaining 38 states.

History of Public Lands Federal ownership of large tracts of land goes legislation creating the Public Land Law Review back to the founding of the United States. As part Commission, which was tasked with reviewing of the formation of the nation, the original 13 colo - public land policy in the U.S. The commission nies turned over the lands west of the Appalachian recommended revision of statutes regarding the Mountains and east of the Mississippi River to the large-scale disposal of public lands and, “future federal government. 3 The federal government then disposal should be only those lands that will used that land to form new states and encourage achieve maximum benefit for the general public settlement and development, while reserving some in non-Federal ownership, while retaining in land for public use. Efforts to encourage settlement Federal ownership those whose values must be of the West continued to increase as lands were preserved so that they may be used and enjoyed used to pay debt and pay soldiers. In the early 1800s, by all Americans.” 5 Congress debated the results federal control of land increased rapidly after the of the commission’s report for three terms before Louisiana Purchase, the Oregon Treaty with England passing the Federal Land Policy and Management and the U.S.-Mexican War led to Mexico turning Act of 1976, which stated the federal government over land to the U.S. should retain ownership of federal lands unless, “it Congress further encouraged westward expan - is determined that disposal of a particular parcel sion and settlement with a series of laws aimed will serve the national interest.” 6 Additionally, the at disposing of federal lands in return for people act required the federal government to receive the moving west. Between 1781 and 1940, the federal full market value for those lands if it disposed of government transferred nearly 800 million acres lands in the future. to private ownership. During the same period, the federal government granted 328 million acres to Legal Basis for the states and 142 million in Alaska under state Federal Land Ownership and Native selection laws. 4 In 1812, the General The framers of the Constitution enshrined the Land Office was established as part of the Treasury right of Congress to use, as it sees fit, the property Department to oversee the disposal of federal lands. owned by the federal government through The A shift in how the federal government treated Property Clause, Article IV, § 3, Clause 2. It reads: public lands began in the 1930s. In 1934, Congress “The Congress shall have Power to dispose of and passed the Taylor Grazing Act and created the U.S. make all needful Rules and Regulations respect- Grazing Service to manage grazing on public lands. ing the Territory or other Property belonging to While the act indicated grazing was to last until the United States.” In Kleppe v. New Mexico , the Congress had disposed of the lands, it was a clear Supreme Court ruled the property clause permits shift in the treatment of public lands. This was the Congress to exercise complete power over public first time the federal government had authorized property entrusted to it. 7 Additionally, the court direct management of lands that previously were stated, “Congress … retains the power to enact leg- freely available for transient grazing. islation respecting those (federal) lands pursuant In 1946, the General Land Office and the U.S. to the Property Clause. … And when Congress so Grazing Service were merged to form the Bureau acts, the federal legislation necessarily overrides of Land Management. In 1964, Congress passed conflicting state laws under the Supremacy Clause.” 8

The Council of State Governments 459 PUBLIC LANDS

Figure A: Federal Land as a Percentage of Total State Land Area

WA 30.3 1.1 MT 2.7 29.9 5.6 OR 7.5 53.1 5.6 ID 6.2 0.8 13.4 10.0 50.2 1.9 WY 0.4 42.3 0.4 0.8 2.5 1.4 NV 1.7 3.1 84.5 1.8 2.0 2.0 CA UT 7.4 57.4 9.9 45.3 CO 5.0 2.8 36.6 1.2 5.4

11.8 3.6 3.2 AZ 7.2 2.9 48.1 NM 41.8 3.8 7.3 1.6

1.9 5.1

AK 69.1 8.2

HI 19.4

Source: U.S. General Services Administration, Federal Real Property Profile 2004 . Note: Map excludes trust properties. Some schematic sizes are slightly larger than actual size, for illustrative purposes.

Sagebrush Rebellion The passage of the Federal Land Policy and Man- passed similar legislation. In 1978, the State of agement Act in 1976 extinguished the hope of many Nevada sued the federal government over the Westerners that the large tracts of federal land in constitutionality of the federal land retention policy their states eventually would be turned over to the in the Federal Land Policy and Management Act. states. Many refused to give up, however, and sparked Additionally, Nevada argued the federal govern - the Sagebrush Rebellion, a series of skirmishes, ment held “public lands in trust temporarily, for the including legal challenges and outright violence purpose of disposal to the State and its citizens.” intended to force the federal government to divest The federal district court for the District of Nevada itself of public lands. The incidents escalated to vio - dismissed the case, finding the constitution “entrusts lence when a bomb was detonated at a U.S. Forest Congress with power over the public land without Service office in April 1995. The threats rose to a limitations; it is not for the courts to say how that level where Bureau of Land Management em- trust shall be administered, but for Congress to ployees were encouraged to travel in pairs. Efforts determine.” to force the federal government to turn over its In 1982, President Ronald Reagan signed an public lands to the states—including lawsuits, state executive order titled “Federal Real Property,” and federal legislation—continue. which created a board to review federal property Among state efforts was a Nevada state law available for disposal. The Reagan administration enacted in 1979 that asserted state title, manage - changed how property should be disposed of, ment and disposal authority over public BLM lands moving from the free transfer of land to selling within Nevada’s boundaries. Arizona, Hawaii, Idaho, land at fair market value. The administration’s New Mexico, North Dakota, Utah and Wyoming all efforts stalled when Congress refused to authorize

460 The Book of the States 2014 PUBLIC LANDS

Table A: Total State Acreage, Total Federal Acreage and Percentage of State Acreage Administered by the Federal Government

Percentage of federal acreage in state, administered by the four federal land management agencies and the Dept. of Defense, 2010 Dept. of the Interior Total percentage Dept. of of state land Agriculture National Fish and Bureau of State or other Total acreage Total federal acreage that Forest Park Wildlife Land Dept. of jurisdiction in the state land acreage is federal Service Service Service Management Defense U.S. Total ...... 2,271,343,360 628,801,639 27.7% 31% 13% 14% 39% 3% Alabama ...... 32,678,400 871,232 2.7% 77% 2% 4% 0% 17% Alaska ...... 365,481,600 225,848,164 61.8% 10% 23% 34% 32% 1% Arizona ...... 72,688,000 30,741,287 42.3% 37% 9% 5% 40% 10% Arkansas ...... 33,599,360 3,161,978 9.4% 82% 3% 12% 0% 3% California ...... 100,206,720 47,797,533 47.7% 44% 16% 1% 32% 8% Colorado ...... 66,485,760 24,086,075 36.2% 60% 3% 1% 35% 2% Connecticut ...... 3,135,360 8,557 0.3% 0% 67% 14% 0% 19% Delaware ...... 1,265,920 28,574 2.3% 0% 0% 88% 0% 12% Florida ...... 34,721,280 4,536,811 13.1% 26% 54% 6% 0% 14% Georgia ...... 37,295,360 1,956,720 5.2% 44% 2% 25% 0% 29% Hawaii...... 4,105,600 833,786 20.3% 0% 43% 36% 0% 21% Idaho ...... 52,933,120 32,635,835 61.7% 63% 2% 0% 36% 0% Illinois ...... 35,795,200 406,734 1.1% 73% 0% 22% 0% 5% Indiana ...... 23,158,400 340,696 1.5% 60% 3% 4% 0% 33% Iowa ...... 35,860,480 122,602 0.3% 0% 2% 58% 0% 40% Kansas ...... 52,510,720 301,157 0.6% 36% 0% 10% 0% 54% Kentucky ...... 25,512,320 1,083,104 4.2% 75% 9% 1% 0% 15% Louisiana ...... 28,867,840 1,330,429 4.6% 45% 1% 42% 1% 10% Maine ...... 19,847,680 209,735 1.1% 26% 32% 31% 0% 11% Maryland ...... 6,319,360 195,986 3.1% 0% 21% 24% 0% 55% Massachusetts ...... 5,034,880 81,692 1.6% 0% 40% 27% 0% 33% Michigan ...... 36,492,160 3,637,965 10.0% 79% 17% 3% 0% 0% Minnesota ...... 51,205,760 3,469,211 6.8% 82% 4% 14% 0% 0% Mississippi ...... 30,222,720 1,523,574 5.0% 77% 7% 14% 0% 2% Missouri ...... 44,248,320 1,675,400 3.8% 89% 3% 4% 0% 4% Montana ...... 93,271,040 26,921,861 28.9% 63% 5% 2% 30% 0% Nebraska ...... 49,031,680 549,346 1.1% 64% 1% 32% 1% 2% Nevada ...... 70,264,320 56,961,778 81.1% 10% 1% 4% 84% 0% New Hampshire ...... 5,768,960 777,807 13.5% 95% 2% 3% 0% 0% New Jersey ...... 4,813,440 176,691 3.7% 0% 20% 40% 0% 40% New Mexico ...... 77,766,400 27,001,583 34.7% 35% 1% 1% 50% 13% New York ...... 30,680,960 211,422 0.7% 8% 16% 13% 0% 63% North Carolina ...... 31,402,880 2,426,699 7.7% 52% 15% 17% 0% 16% North Dakota ...... 44,452,480 1,735,755 3.9% 64% 4% 28% 3% 1% Ohio ...... 26,222,080 298,500 1.1% 81% 7% 3% 0% 10% Oklahoma ...... 44,087,680 703,336 1.6% 57% 1% 15% 0% 26% Oregon ...... 61,598,720 32,665,430 53.0% 48% 1% 2% 49% 0% Pennsylvania ...... 28,804,480 616,895 2.1% 83% 8% 2% 0% 7% Rhode Island ...... 677,120 5,248 0.8% 0% 0% 45% 0% 55% South Carolina ...... 19,374,080 898,637 4.6% 70% 4% 14% 0% 12% South Dakota ...... 48,881,920 2,646,241 5.4% 76% 5% 8% 10% 0% Tennessee ...... 26,727,680 1,273,974 4.8% 56% 28% 4% 0% 12% Texas ...... 168,217,600 2,977,950 1.8% 25% 40% 18% 0% 16% Utah ...... 52,696,960 35,033,603 66.5% 23% 6% 0% 65% 5% Vermont ...... 5,936,640 453,871 7.6% 88% 2% 7% 0% 3% Virginia ...... 25,496,320 2,358,071 9.2% 71% 13% 5% 0% 11% Washington...... 42,693,760 12,173,813 28.5% 76% 15% 1% 4% 4% West Virginia ...... 15,410,560 1,130,951 7.3% 92% 6% 2% 0% 0% Wisconsin ...... 35,011,200 1,865,374 5.3% 82% 3% 11% 0% 4% Wyoming ...... 62,343,040 30,043,513 48.2% 31% 8% 0% 61% 0% Dist. Of Columbia .... 39,040 8,450 21.6% 0% 82% 0% 0% 18%

Source: Gorte, Vincent, Hanson and Rosenblum. “Federal Land Ownership: Overview and Data,” Congressional Research Service, February 8, 2012. https://www.fas.org/sgp/crs/misc/R42346.pdf .

The Council of State Governments 461 PUBLIC LANDS the disposal of lands without knowing what lands The compact would take effect when two states the administration was considering selling. In 1985, have adopted the compact and Congress votes to Reagan signed an executive order repealing the consent to the terms of the compact. Efforts in the previous directive and ordering the use of better other states have not gone as far or been as strong land management practices. as the language included in the Utah legislation. A series of bills introduced in Congress between 1977 and 1982 would have changed the land Notes retention policies in the Federal Land Policy and 1 Gorte, Ross W. et al, “Federal Land Ownership: Over- Management Act. The bills would have authorized view and Data” Congressional Research Service, February the transfer of unreserved lands to states that 8, 2012. Available at: https://www.fas.org/sgp/crs/misc/R42 applied to have them if the state had a land man - 346.pdf . agement agency. These efforts failed, however, and 2 Pomarico, Bonnie et al. “Public Land Statistics 2012” never reached the floor. The issue largely died off Bureau of Land Management, June 2013. Available at: in Congress until 1994, when House Republicans http://www.blm.gov/public_land_statistics/pls12/pls2012- introduced their Contract with America. Like web.pdf . 3 previous efforts, the bills never made it to the floor Alexander, Kristina et al. “Federal Land Ownership: Constitutional Authority and the History of Acquisition, for a vote. The bills that have been introduced since Disposal, and Retention” Congressional Research Service, then all failed to pass. December 3, 2007. Available at: http://assets.opencrs.com/ As recently as March 2014, the Sagebrush Rebel- rpts/RL34267_20071203.pdf. lion was rekindled when Cliven Bundy, a Nevada 4 Pomarico, Bonnie et al. “Public Land Statistics 2012” rancher, and an armed group of supporters chose Bureau of Land Management, June 2013. Available at: to defy the federal government, Federal officials http://www.blm.gov/public_land_statistics/pls12/pls2012- had declared their intent to confiscate Bundy’s web.pdf . 5 cattle to offset the cost of his unpaid grazing fees. One Third of the Nation’s Land: A Report to the Presi- dent and to the Congress by the Public Land Law Review The fees have been accumulating since 1993. The Commission (Washington, D.C.: U.S. GPO, June 1970). Bureau of Land Management declined to enforce 6 The Federal Land Policy and Management Act of 1976, its court order when conditions threatened to esca - Public Law 94-579, U.S. Statutes at Large 90 (1976): 2743. late to an armed confrontation, thus diffusing the 7 Kleppe v. New Mexico , 426 U.S. 529, 542-543 (1976). situation for the moment. 8 Kleppe v. New Mexico , 426 U.S. 529, 542-543 (1976). 9 House Bill 164, 2013–2014, Regular Session, (Utah, 2014) Current Efforts to Transfer Public Lands http://le.utah.gov/~2014/bills/static/hb0164.html. Legislators in several Western states continue to work to have the federal government transfer lands About the Author to those states. During the past two years, policy - Hans Poschman is a former policy analyst for The Council makers in seven states have introduced legislation of State Governments West. Prior to joining CSG West, he concerning the transfer of federal public lands. Utah worked for the California Senate. His policy areas were has been among the most active states in moving agriculture, rural affairs, water, environment and fiscal legislation forward. In 2012, Utah legislators passed policy. He holds a master’s in public policy from California House Bill 148, “Transfer of Public Lands Act and Polytechnic State University. He is currently employed at the Institute for Advanced Technology and Public Policy Related Study.” The legislation demands the federal at Cal Poly in San Luis Obispo. government “extinguish title” to 20 million acres of land by Dec. 31, 2014, and transfer the ownership to the state. The Utah legislature has followed up the initial bill with a resolution in 2013 urging the federal government to comply with the Transfer of Public Lands Act. In 2014, Utah passed House Bill 164, “The Inter- state Compact on the Transfer of Public Lands,” which would, “study, collect data, and develop political and legal mechanisms for securing the transfer to the respective member states of certain specially identified federally controlled public lands within the respective member state boundaries.” 9

462 The Book of the States 2014