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Ownership of Federal Land: Answers Suggested by the Bundy Standoff (Eminent Constitutional Scholar)
Our American Constitution ^ | April 25, 2014 | Prof. Rob Natelson

Posted on 04/29/2014 6:00:39 AM PDT by xzins

The Bundy stand-off in Nevada has induced several people to ask me about the extent to which the federal government can own land, at least under the Constitution’s intended meaning. As it happens, in 2005 I studied the issue in depth, and published the following article: Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005).

In a nutshell, here’s what I found:

(1) Most commentators on the issue have staked out one of two polar positions. One position, which is current U.S. Supreme Court doctrine, is that the federal government may acquire and own any land it wishes for any governmental purpose, not just for its enumerated powers. The other polar position is that the federal government may own land only for the purposes enumerated in the Enclave Clause (the national capital and “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings”) and that the “equal footing doctrine” requires that all other federal land within a prospective state be handed over the state government upon statehood.

(2) In fact, both polar positions are false—and very clearly so. This shines through when you study the Constitution’s text, meaning, and background. By “background,” I mean its drafting history, the ratification debates, 18th century law, and so forth. However the constitutional text alone should be sufficient to cast both polar claims into doubt. The text of the Constitution grants the federal government no plenary power to hold land, only to dispose. A general power to hold is just not in there. The second polar position is also contradicted by the text: The equal footing doctrine is not there either. (It was a feature of certain pre-constitutional documents, such as the Northwest Ordinance.)

(3) The Constitution grants the federal government authority to acquire real estate and other property to carry out any enumerated purpose, either in the exercise of a core power (such as “maintain a Navy”) or through the implied powers memorialized in the Necessary and Proper Clause. Thus, Congress may acquire land to build “post Roads” (limited access highways), house tax collectors, and build lighthouses under the Commerce Power.

(4) Further, the Constitution’s Treaty Power authorizes the federal government to acquire territory.

(5) However, land acquired—through, for example, the Treaty Power—may be held only for enumerated purposes. Land not needed for such purposes must be disposed of within a reasonable time. The federal government should have disposed of BLM grazing land long ago.

(6) In fact, for the federal government to own a large share of American real estate (currently about 28 percent) is directly contrary to certain values the Constitution was designed to further.

(7) “Disposal” does not require handing real estate over to state government. On the contrary, in many situations doing so would conflict with federal officials’ duties of trust. In each instance, disposal should be effectuated so as to further the general welfare. In the case of some parcels, it may mean transferring to state government. But it may also require selling to the highest bidder, or, in the case of environmentally sensitive lands, transferring to perpetual environmental trusts, as is commonly done in England.

(8) The Enclave Clause (Article I, Section 8, Clause 17) is really more about governmental jurisdiction than ownership. The federal government can have an enclave in which much of the territory is titled to private parties—as is true of Washington, D.C. It’s just that in an enclave, federal rather than state jurisdiction is supreme. Enclaves may be held only for enumerated purposes (as signaled by the use of the 18th century legal term “needful”). State consent to creation of an enclave is required, and consent can be conditional upon the federal government honoring particular terms.

(9) The Enclave Clause was sold to the ratifying public on the basis that enclaves would be relatively small. Holding massive tracts of undeveloped land (such as in Yosemite National Park, nearly 750,000 acres) as enclaves is not what the Founders had in mind.

(10) This is signaled by the Constitution’s use of the word “Building.” In the 18th century, the term did not have to mean an enclosed space, but it did have to refer to a fabricated construction of some kind, since as a dockyard or (in modern terms) an airport runway.

(11) But not every parcel of federal land need be an enclave: In fact, most are not and should not be. Non-enclave land owned by the federal government is held under the Property Clause (Article IV, Section 3, Clause 2), and should be held only for enumerated purposes. Grazing, for example, is not an enumerated purpose.

(12) Non-enclave federal property within states is subject to state law. Contrary to current Supreme Court doctrine, when the federal government owns non-enclave land, the federal government usually should be treated like any other landowner, so long as the state respects the discharge of legitimate federal functions.


TOPICS: Editorial; News/Current Events
KEYWORDS: blm; bundy; natelson; orginalism
Rob Natelson, the Independence Institute’s Senior Fellow in Constitutional Jurisprudence, is one of America’s best-known constitutional scholars. In opinions issued during the most recent U.S. Supreme Court term, he was cited 12 times in two separate cases. In 2012, parts of Chief Justice Roberts’ opinion on the “Obamacare” health care law closely tracked Rob’s original research on the Necessary and Proper Clause.

Rob was a law professor for 25 years, serving at three different universities. Among other subjects, he taught Constitutional Law, Constitutional History, Advanced Constitutional Law, and First Amendment. He is also the Senior Fellow in Constitutional Jurisprudence at the Montana Policy Institute.

Rob is especially known for his studies of the Constitution’s original meaning. His research has carried him to libraries throughout the United States and in Britain, including four months at Oxford. The results have included several break-though discoveries.

1 posted on 04/29/2014 6:00:39 AM PDT by xzins
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To: Jim Robinson; BuckeyeTexan; P-Marlowe; Scoutmaster
(12) Non-enclave federal property within states is subject to state law. Contrary to current Supreme Court doctrine, when the federal government owns non-enclave land, the federal government usually should be treated like any other landowner, so long as the state respects the discharge of legitimate federal functions.

I suppose this means that the state and local can be taxing the Fed just like they tax other property holders.

2 posted on 04/29/2014 6:01:53 AM PDT by xzins ( Retired Army Chaplain and Proud of It! Those who truly support our troops pray for victory!)
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To: xzins; Jim Robinson; BuckeyeTexan; P-Marlowe
Thank you very much for pinging me; you've been very kind and helpful. Here is a full-size .pdf of Professor Natelson's law review article, Federal Land Retention and the Constitution's Property Clause: The Original Understanding. I have bookmarked the article and will try to read it in full today.

I wish I could discuss the ownership of land issues with my ConLaw professor, the late Charles Alan Wright, whose photographic memory extended beyond footnotes in amicus briefs to the writings of the founders. Had I known then what I know now, I would have clutched at every word he said and asked more questions.

Skimming the conclusion to Prof. Natelson's article, he concludes:

Natelson's constant reference to "current Supreme Court doctrine" is what I've clumsily been referring to as the difference between the Constitutional Law of the Land and the post-Marbury v. Madison 'law of the land.'

3 posted on 04/29/2014 6:43:13 AM PDT by Scoutmaster (I'd rather be at Philmont)
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To: Scoutmaster
Prof. Natelson's article = Prof. Natelson's law review article.
4 posted on 04/29/2014 6:44:08 AM PDT by Scoutmaster (I'd rather be at Philmont)
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To: Scoutmaster

I’ve underlined in the article those portions I thought applied to Bundy’s case, in particular.

Assuming that open range, as Natelson says, should have been disposed of long ago, then that actually adds legitimacy to Bundy’s looking to the state of Nevada rather than to the federal government.

The other alternative that I see is that the Fed’s decision to accept grazing open range in the past was a provable “dispositioning” of the land that has the multiple effects of: (1) adverse utilization, and (2) control by Nevada.


5 posted on 04/29/2014 6:59:55 AM PDT by xzins ( Retired Army Chaplain and Proud of It! Those who truly support our troops pray for victory!)
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To: xzins

Are you suggesting these issues for the ‘next Bundy’ or a different Bundy transaction, or are you suggesting an exception to res judicata/collateral estoppel regarding the previous final judgments against Bundy?


6 posted on 04/29/2014 7:25:18 AM PDT by Scoutmaster (I'd rather be at Philmont)
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To: Scoutmaster
are you suggesting an exception to res judicata/collateral estoppel

LOL. I'm a Chaplain, Scout. Translation required! I am neither a lawyer nor the son of a lawyer.

I'm actually suggesting that Natelson's conclusion that it's high time the Fed divested itself of land that long since should have been disposed of.

Now, that might affect Bundy, depending on Nevada and those other western states pressing their claims against the Fed.

It would help future Bundies (How do you spell the plural of Bundy...:>)

If the legal speech you posted means, "should they give Bundy a break on this?", then I'd say, "Yes, they need to start all over again."

7 posted on 04/29/2014 7:32:42 AM PDT by xzins ( Retired Army Chaplain and Proud of It! Those who truly support our troops pray for victory!)
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To: xzins

At a glance, his points seem reasonable. However, this sentence is the killer:

“One position, which is current U.S. Supreme Court doctrine, is that the federal government may acquire and own any land it wishes for any governmental purpose, not just for its enumerated powers.”

That has been the consistent approach taken by the US Supreme Court since at least 1911.

That doesn’t mean it is right, but as a practical matter, the court will rarely overturn 100+ years of consistent precedence. If it does so, from what I’ve seen, it only does so to move in a liberal direction - because liberals don’t mind ignoring the Constitution, while conservatives are constrained by it.

If the Bundy or Hage case went before the Supreme Court, Justice Thomas is probably the only justice with the intelligence AND integrity to truly apply the Constitution to the situation, regardless of how that affected the outcome. Scalia might, but he is not as clear headed as Thomas. I’d bet the other 7 wouldn’t even hesitate to find for the government.

In fact, I’d bet Thomas would be the only justice on the Court who would consider taking such a case, which means it would not be heard. And until then, all lower courts are required to follow the precedent set by the Supreme Court for the last 100 years.

Thus, it comes back to the idea that only CONGRESS can do anything, and Congress does not want to. John McCain - one of my two supposedly reppublican senators - could end these abuses by the BLM & USFS this week if he wished. He has enough influence to get serious oversight hearings started, and to pass legislation that would require the BLM & USFS to pay at least some attention to multiple use.

Will he? Not a chance in hell! McCain wouldn’t lift a pinkie to help Tombstone get the water it needs to prevent the town from burning, although the USFS doesn’t really have a legal leg to stand on. A famous TOWN, not a rancher, in his state, with an obvious and critical need to do what they have been allowed to do for over 100 years...and McCain won’t lift a finger!

That is why I won’t vote for ‘whatever republican wins the primary’ any more. I don’t see any difference between McCain and Dingy Harry. I don’t doubt they get along fine, and McCain would vastly prefer to eat dinner with Dingy Harry than with Jim Robinson!

It might be that it will take civil disobedience to make the alphabet agencies wary enough that they won’t continue total abuse of their power. I was opposed to backing Bundy, and I still think his legal argument of not being a US citizen stinks...but the more I think about it, the only hope I see in getting ANY action is civil disobedience. I don’t think there are 5 genuine conservatives in the Senate, and probably no more than 20 tops in the House.


8 posted on 04/29/2014 7:42:23 AM PDT by Mr Rogers (I sooooo miss America!)
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To: Scoutmaster

Thanks for the link. I’ll try to read it later today.


9 posted on 04/29/2014 7:43:44 AM PDT by Mr Rogers (I sooooo miss America!)
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To: xzins

The STATES are negligent in their responsibilty to exercise their POWER provided to them in the CONSTITUTION. Congress is negligent in exercising its Constitutional authority in checking a runaway unconstitutional executive branch and federal bureaucracy. Seems the feds never gave the land to Nevada in the first place as they were required to do and Nevada hasn’t made any demands or taken legal aciton to protect its rights. In any case the local sheriff is THE LAW and he too was negligent in exercising his rights and duties..
AND NO ONE IS BEING HELD ACCOUNTABLE........ as usual. Plus now we have the PRAVDA MEDIA not doing its job and merely being an arm of the libtard regime.


10 posted on 04/29/2014 7:44:24 AM PDT by zzwhale
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To: xzins
(5) However, land acquired—through, for example, the Treaty Power—may be held only for enumerated purposes. Land not needed for such purposes must be disposed of within a reasonable time. The federal government should have disposed of BLM grazing land long ago.

The Endangered Specious Act cites numerous environmental treaties for its authority. They could just as easily have taken Cliven Bundy's land for that, and paid for it.

Note: Do not presume that I believe said treaties are constitutionally legitimate.

11 posted on 04/29/2014 8:00:31 AM PDT by Carry_Okie (The tree of liberty needs a rope.)
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To: xzins
But it may also require selling to the highest bidder, or, in the case of environmentally sensitive lands, transferring to perpetual environmental trusts, as is commonly done in England.

The very idea that one particular parcel will remain suitable for a particular species in a dynamic system is based in this delusional idea that "Nature" is unchanging. What needs to happen is that a contract is let is for maintenance of said species. For example, Cliven Bundy's property was ideal for the desert tortoise. Hence, he would be in a favorable position to win that contract.

12 posted on 04/29/2014 8:14:30 AM PDT by Carry_Okie (The tree of liberty needs a rope.)
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To: Mr Rogers
Art III...In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

If the group of states meeting over wrongfully held federal lands sues the federal government, then Scotus MUST take the case, if I read the above and other sections of Art II correctly.

Another way would be to start TAXING the Federal government for public lands held that are not held under some enumerated purpose.

13 posted on 04/29/2014 8:28:28 AM PDT by xzins ( Retired Army Chaplain and Proud of It! Those who truly support our troops pray for victory!)
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To: xzins

It is as I said: The Feds can only have land that they need to perform the functions they were authorized to do. Common sense was a founding father strong suit.


14 posted on 04/29/2014 8:40:36 AM PDT by HMS Surprise (Chris Christie can STILL go straight to hell.)
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To: HMS Surprise

They’ve had that land more than long enough to figure out a constitutional disposition. Therefore, the state (counties) should start levying property tax.


15 posted on 04/29/2014 8:48:58 AM PDT by xzins ( Retired Army Chaplain and Proud of It! Those who truly support our troops pray for victory!)
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To: Mr Rogers; xzins

The law review article is also available through xzins’ link. The only difference is my link is to a full-width .pdf.


16 posted on 04/29/2014 8:59:27 AM PDT by Scoutmaster (I'd rather be at Philmont)
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To: Scoutmaster; Mr Rogers

full width is a better way to view the original which I think is on scibd or something like that


17 posted on 04/29/2014 9:08:05 AM PDT by xzins ( Retired Army Chaplain and Proud of It! Those who truly support our troops pray for victory!)
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To: Mr Rogers
and I still think his legal argument of not being a US citizen

Yep. I'm not sure what he means by that, but since a president, according to the Constitution, must be a citizen of the USA, then I assume Bundy believes Nevandans aren't allowed to run for president. Lol.

On the other hand, the Founders did view a "state" as a nation, and the United States, viewed from their perspective, is probably better seen in our day as the "States United".

Each is a sovereign state.

18 posted on 04/29/2014 9:13:55 AM PDT by xzins ( Retired Army Chaplain and Proud of It! Those who truly support our troops pray for victory!)
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To: taxcontrol; bunkerhill7; Kackikat; Ben Ficklin

ping


19 posted on 04/29/2014 9:24:26 AM PDT by B4Ranch (Name your illness, do a Google & YouTube search with "hydrogen peroxide". Do it and be surprised.)
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To: xzins

Great post!


20 posted on 04/29/2014 9:24:30 AM PDT by Jim Robinson (Resistance to tyrants is obedience to God!!)
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To: Mr Rogers; Scoutmaster; xzins
I posted the following on another thread the other day and failed to ping either of you. Apologies.

There are two recent cases that could give us an indication about how a Roberts' Court would rule: Marvin M. Brandt Revocable Trust v. United States (March 2014) and PPL Montana, LLC v. State of Montana (February 2012). The following is regarding the latter.

The Supreme Court sided today with a Wyoming landowner who challenged the Forest Service's construction of a bicycle trail on an abandoned railway that slices through his property.

By an 8-1 vote, the justices held in Marvin Brandt Revocable Trust v. United States that the government had no right to Brandt's Fox Park tract once the railroad formally abandoned the property around 2004. The decision reverses a lower federal appellate court ruling in favor of the Forest Service.

Chief Justice John Roberts, writing for the majority, classified the railroad right of way as an easement that reverted back to Brandt when the railroad pulled up its ties.

The government, Roberts wrote, lost because of its arguments in a previous Supreme Court case -- 1942's Great Northern Railway Co. v. United States. That case centered on whether railroads were given rights to subsurface minerals when the government granted a right of way.

The government won in that case by arguing that railroads didn't get mineral rights and classified rights of way as easements, meaning a temporary right to cross the land.

The court "cannot overlook the irony," Roberts said, of the government now basing its arguments on other Supreme Court cases.

"The government loses that argument today, in large part because it won when it argued the opposite before this court more than 70 years ago," he wrote.

"Those basic common law principles resolve this case. When the Wyoming and Colorado Railroad abandoned the right of way in 2004, the easement referred to in the Brandt patent terminated. Brandt's land became unburdened of the easement, conferring on him the same full rights over the right of way as he enjoyed over the rest of the Fox Park parcel."

(...)

"The chief may have taken this opinion to send a message to the [solicitor general] that it should not be making arguments that depend on a complete about-face from prior arguments that have formed the basis for long-standing precedent," said Tim Bishop of Mayer Brown, a Supreme Court industry advocate who's not involved in the Brandt case. "Someone at [the Department of Justice] should have stood up to [the Bureau of Land Management] and Interior and explained that there was no plausible basis for arguing that the right of way was more than an easement." Source

xzins: We need a ping list and keeper of. I nominate you. :) I have the SCOTUS ping list and can ping them when necessary regarding "Supreme Court doctrine." (I think I like that phrase.)
21 posted on 04/29/2014 10:54:06 AM PDT by BuckeyeTexan (There are those that break and bend. I'm the other kind. ~Steve Earle)
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To: BuckeyeTexan; Mr Rogers; xzins
Thank you for those cases.

I'll note that parties take diametrically opposed positions in subsequent litigation that involve seemingly identical facts to previous litigation. The parties attempt to differentiate the facts of the case at issue from the underlying facts of the previous litigation or to argue that public policy has changed.

Differentiation of facts is what has given us exceptions and nuances in legal interpretation, as well as being the basis for much or most common law.

22 posted on 04/29/2014 11:33:55 AM PDT by Scoutmaster (I'd rather be at Philmont)
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