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 .................