Lands in the West - A brief history of public grazing in the U.S.
When purchasing a ranch that comes with a public grazing permit it’s important to understand the basic information and history behind these public lands and the federal government’s roles in them.
The article below is written by Hans Poschman and was published on The Council of State Governments
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 back to the founding of the United States. As part of the formation of the nation, the original 13 colo- nies turned over the lands west of the Appalachian Mountains and east of the Mississippi River to the federal government.3 The federal government then used that land to form new states and encourage settlement and development, while reserving some land for public use. Efforts to encourage settlement of the West continued to increase as lands were used to pay debt and pay soldiers. In the early 1800s, federal control of land increased rapidly after the Louisiana Purchase, the Oregon Treaty with England and the U.S.-Mexican War led to Mexico turning over land to the U.S.
Congress further encouraged westward expansion and settlement with a series of laws aimed at disposing of federal lands in return for people moving west. Between 1781 and 1940, the federal government transferred nearly 800 million acres to private ownership. During the same period, the federal government granted 328 million acres to the states and 142 million in Alaska under state and Native selection laws.4 In 1812, the General Land Office was established as part of the Treasury Department to oversee the disposal of federal lands.
A shift in how the federal government treated public lands began in the 1930s. In 1934, Congress passed the Taylor Grazing Act and created the U.S. Grazing Service to manage grazing on public lands. While the act indicated grazing was to last until Congress had disposed of the lands, it was a clear shift in the treatment of public lands. This was the first time the federal government had authorized direct management of lands that previously were freely available for transient grazing.
In 1946, the General Land Office and the U.S. Grazing Service were merged to form the Bureau of Land Management. In 1964, Congress passed legislation creating the Public Land Law Review Commission, which was tasked with reviewing public land policy in the U.S. The commission recommended revision of statutes regarding the large-scale disposal of public lands and, “future disposal should be only those lands that will achieve maximum benefit for the general public in non-Federal ownership, while retaining in Federal ownership those whose values must be preserved so that they may be used and enjoyed by all Americans.”5 Congress debated the results of the commission’s report for three terms before passing the Federal Land Policy and Management Act of 1976, which stated the federal government should retain ownership of federal lands unless, “it is determined that disposal of a particular parcel will serve the national interest.” 6 Additionally, the act required the federal government to receive the full market value for those lands if it disposed of lands in the future.
Legal Basis for Federal Land Ownership
The framers of the Constitution enshrined the right of Congress to use, as it sees fit, the property owned by the federal government through The Property Clause, Article IV, § 3, Clause 2. It reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respect- ing the Territory or other Property belonging to the United States.” In Kleppe v. New Mexico, the Supreme Court ruled the property clause permits Congress to exercise complete power over public property entrusted to it.7 Additionally, the court stated, “Congress ... retains the power to enact leg- islation respecting those (federal) lands pursuant to the Property Clause. ... And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.” 8
Federal Land as a Percentage of Total State Land Area
Washington - 30.3%
Oregon - 53.1%
California - 45.3%
Idaho - 50.2%
Nevada - 84.5%
Utah - 57.4%
Montana - 29.9%
Wyoming - 42.3%
Colorado - 36.6%
New Mexico - 41.8%
Arizona - 48.1%
Source: U.S. General Services Administration, Federal Real Property Profile 2004.
Sagebrush Rebellion
The passage of the Federal Land Policy and Man- agement Act in 1976 extinguished the hope of many Westerners that the large tracts of federal land in their states eventually would be turned over to the states. Many refused to give up, however, and sparked the Sagebrush Rebellion, a series of skirmishes, including legal challenges and outright violence intended to force the federal government to divest itself of public lands.The incidents escalated to vio- lence when a bomb was detonated at a U.S. Forest Service office in April 1995. The threats rose to a level where Bureau of Land Management em- ployees were encouraged to travel in pairs. Efforts to force the federal government to turn over its public lands to the states—including lawsuits, state and federal legislation—continue.
Among state efforts was a Nevada state law enacted in 1979 that asserted state title, manage- ment and disposal authority over public BLM lands within Nevada’s boundaries. Arizona, Hawaii, Idaho, New Mexico, North Dakota, Utah and Wyoming all passed similar legislation. In 1978, the State of Nevada sued the federal government over the constitutionality of the federal land retention policy in the Federal Land Policy and Management Act. Additionally, Nevada argued the federal govern- ment held “public lands in trust temporarily, for the purpose of disposal to the State and its citizens.” The federal district court for the District of Nevada dismissed the case, finding the constitution “entrusts Congress with power over the public land without limitations; it is not for the courts to say how that trust shall be administered, but for Congress to determine.”
In 1982, President Ronald Reagan signed an executive order titled “Federal Real Property,” which created a board to review federal property available for disposal. The Reagan administration changed how property should be disposed of, moving from the free transfer of land to selling land at fair market value. The administration’s efforts stalled when Congress refused to authorize the disposal of lands without knowing what lands the administration was considering selling. In 1985, Reagan signed an executive order repealing the previous directive and ordering the use of better land management practices.
A series of bills introduced in Congress between 1977 and 1982 would have changed the land retention policies in the Federal Land Policy and Management Act. The bills would have authorized the transfer of unreserved lands to states that applied to have them if the state had a land man- agement agency. These efforts failed, however, and never reached the floor. The issue largely died off in Congress until 1994, when House Republicans introduced their Contract with America. Like previous efforts, the bills never made it to the floor for a vote. The bills that have been introduced since then all failed to pass.
As recently as March 2014, the Sagebrush Rebel- lion was rekindled when Cliven Bundy, a Nevada rancher, and an armed group of supporters chose to defy the federal government, Federal officials had declared their intent to confiscate Bundy’s cattle to offset the cost of his unpaid grazing fees. The fees have been accumulating since 1993. The Bureau of Land Management declined to enforce its court order when conditions threatened to esca- late to an armed confrontation, thus diffusing the situation for the moment.
Current Efforts to Transfer Public Lands
Legislators in several Western states continue to work to have the federal government transfer lands to those states. During the past two years, policy- makers in seven states have introduced legislation concerning the transfer of federal public lands. Utah has been among the most active states in moving legislation forward. In 2012, Utah legislators passed House Bill 148, “Transfer of Public Lands Act and Related Study.”The legislation demands the federal 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 The compact would take effect when two states have adopted the compact and Congress votes to consent to the terms of the compact. Efforts in the other states have not gone as far or been as strong as the language included in the Utah legislation.
Notes
1 Gorte, Ross W. et al, “Federal Land Ownership: Over- view and Data” Congressional Research Service, February 8, 2012. Available at: https://www.fas.org/sgp/crs/misc/R42 346.pdf.
2 Pomarico, Bonnie et al. “Public Land Statistics 2012” Bureau of Land Management, June 2013. Available at: http://www.blm.gov/public_land_statistics/pls12/pls2012- web.pdf.
3 Alexander, Kristina et al. “Federal Land Ownership: Constitutional Authority and the History of Acquisition, Disposal, and Retention” Congressional Research Service, December 3, 2007. Available at: http://assets.opencrs.com/ rpts/RL34267_20071203.pdf.
4 Pomarico, Bonnie et al. “Public Land Statistics 2012” Bureau of Land Management, June 2013. Available at: http://www.blm.gov/public_land_statistics/pls12/pls2012- web.pdf.
5 One Third of the Nation’s Land: A Report to the Presi- dent and to the Congress by the Public Land Law Review Commission (Washington, D.C.: U.S. GPO, June 1970).
6 The Federal Land Policy and Management Act of 1976, Public Law 94-579, U.S. Statutes at Large 90 (1976): 2743.
7 Kleppe v. New Mexico, 426 U.S. 529, 542-543 (1976).
8 Kleppe v. New Mexico, 426 U.S. 529, 542-543 (1976).
9 House Bill 164, 2013–2014, Regular Session, (Utah, 2014)
http://le.utah.gov/~2014/bills/static/hb0164.html.
About the Author
Hans Poschman is a former policy analyst for The Council of State Governments West. Prior to joining CSG West, he worked for the California Senate. His policy areas were agriculture, rural affairs, water, environment and fiscal policy. He holds a master’s in public policy from California Polytechnic State University. He is currently employed at the Institute for Advanced Technology and Public Policy at Cal Poly in San Luis Obispo.