From a February 7, 1995, speech by Tim Binder
Tim is an attorney with the U.S. Forest Service Office of General
Counsel in Portland.
I have been asked to address the constitutionality of Federal control
over public lands. Sue Zike called me yesterday and requested some
background information about me. After giving her a brief synopsis, she
asked for the areas of my expertise. I disclaim expertise in all areas.
The dictionary defines an expert as "a person who is very skillful or
highly trained and informed in some special field." However, it seems to
me that the ordinary meaning of an expert among people is one who is wise
in a field.
Many people may be highly trained, but who is the one who is wise?
Wisdom is more than the mere accumulation of facts. It is the judicious
application of those facts to circumstances. I'm not sure I qualify as
But then, I'm not sure that the constitutional framers would have been
viewed as experts in constitutional law. They were experimenters, and
they did a great job. After drafting the Articles of Confederation they
discovered that there was a real problem. Without a strong central
government, the union likely could not be held together.
Accordingly, they went back to the drawing board. They did not merely
tinker with the Articles of Confederation. They threw them out and
drafted a new document, the Constitution. Under the Constitution, the
supreme power rested in the Federal government.
Article 6, Clause 2 provides:
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made,
under the Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, anything in
the Constitution or Laws of any State to the Contrary notwithstanding.
This provision states in very basic terms: "Whatever the Federal
government does, within its constitutional authority, controls over any
State or local action." Thus, we must go to the Constitution to
determine what authority the Federal government has regarding public
The Property Clause
The Constitution provides, in Article 4, Section 3, Clause 2:
The Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property
belonging to the United States; and nothing in this Constitution shall be
so construed as to Prejudice any Claims of the United States, or of any
This is known as the "Property Clause."
Now, there has been much talk about the inability of the Federal
government to control lands unless the States have first ceded the lands
to the Federal government. The Constitutional requirement for cession is
found in Article 1, Section 9, Clause 16. That Clause applies only to
the seat of government, to forts, magazines, arsenals, dock-yards and
other needful buildings. That requirement for cession is not found in
the Property clause.
As far back as 1845, the United States Supreme Court held that Congress
holds title to public lands, not by virtue of cession, but by law.
Pollard v. Hagan, 44 U.S. 21, 11 L.Ed. 565 (1845).
The Property Clause "authorized the passage of all laws necessary to
secure the rights of the United States to the public lands, and to
provide for their sale, and to protect them from taxation." 11 L.Ed.
That Court went on to state:
And all constitutional laws are binding on the people, in the new
States and the old ones, whether they consent to be bound by them or not.
The Court concluded that
The proposition, therefore, that such a law cannot operate upon the
subject matter of its enactment, without the express consent of the
people of the new State where it may happen to be, contains its own
refutation, and requires no farther examination.
Congress had the authority to control the public lands without the
consent of the State.
In yet an earlier case, the Supreme Court stated in reference to the
Property Clause language:
To confine the language of the Constitution, therefore, to a mere
delegation to Congress of a power to sell the territory, or to examine
and prepare it for sale, is evidently an unwarranted restriction upon it.
United States v. Gratiot, 39 U.S. 526, 10 L.Ed. 573 (1843).
The Court in that case stated that the Federal government could lease
public land within a State.
In a case that reminds us that the attempt by local municipalities to
control public lands is not a new issue, the Supreme Court back in 1867
address a dispute between a person claiming ownership under authority of
the City of San Francisco and the State of California, and the Federal
government. The Supreme Court held that title to public lands remain in
the United States. Grisar v. McDowell, 73 U.S. 495, 18 L.Ed. 863 (1867).
The Court noted the following:
[F]rom an early period in the history of the government it has been
the practice of the President to order, from time to time, as the
exigencies of the public service required, parcels of land belonging to
the United States to be reserved from sale and set apart for public uses.
Again, in United States v. San Francisco, 310 U.S. 16, 29, 84 L.Ed 1050,
1059 (1940), the Supreme Court stated:
The power over the public land thus intrusted to Congress is without
limitations. "And it is not for the courts to say how that trust shall
be administered. That is for Congress to determine." quoting Light v.
United States, 220 U.S. 523, 537, 55 L.Ed 570 (1911)
Again, in Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 97
L.Ed. 15 (1952), the Court stated:
The power of Congress over public lands, conferred by Art. IV S 3 of
the Constitution, is "without limitations."
In Federal Power Commission v. Oregon, 349 U.S. 435 (1955), the court
held that to require a Federal permittee to obtain a State license would
be to allow the State a veto of use on Federal land. Such is not
permitted under the Property Clause.
More recently, the Supreme Court has affirmed the primacy of Federal
control over public lands. In Kleppe v. New Mexico, 426 U.S. 529, 540
(1976), the Court again stated that the power of the Federal government
over the public lands is "without limitations." Kleppe, 426 U.S. at 539.
Under the Property Clause "Congress exercises the powers both of a
proprietor and of a legislature over the public domain." Kleppe v. New
Mexico, 426 U.S. 529, 540 (1976).
It has been stated early. It has been stated often. It bears repeating
today. The Property Clause grants to Congress the constitutional
authority to manage and control public land. Such authority does not
depend upon a State ceding the land to the Federal government. The
authority to manage such lands derives, not from Art. 1, Section 9,
Clause 16, but from Art. 4, Section 3, Clause 2 (the Property Clause).
Such authority exists as a matter of constitutional law. Such authority
is not new in our constitutional system. It is part of the warp and woof
of our constitutional system. The authority over public lands resides in
the Federal government.
The Supremacy Clause
This does not mean that States lack all authority over such lands.
States may regulate private uses on Federal lands, as long as such
regulations do not conflict with Federal regulations. See Kleppe. But
though States have some power to regulate private uses, States do not
have the authority to regulate Federal uses on Federal lands.
The Supremacy Clause mandates this conclusion. Thus, in Mayo v. United
States, 319 U.S. 441, 445 (1943), the United States Supreme Court stated:
activities of the Federal Government are free from regulation by any
In Hancock v. Train, 426 U.S. 167, 179 (1976), the Court stated:
Because of the fundamental importance of the principles shielding
federal installations and activities from regulation by the States, an
authorization of state regulation is found only when and to the extent
there is 'a clear congressional mandate,' 'specific congressional action'
that makes this authorization of state regulation 'clear and
In a case more closely on point with the present situation, the State of
North Dakota sought to require the approval of the local county
commissioners before the Federal Government could acquire wetland
easements in the State. North Dakota v. United States, 460 U.S. 300
(1983). In that situation, 16 U.S.C. 715k-5 required the approval of the
Governor before the Federal Government could acquire a wetland easement.
Before reaching the precise issue in that case, the Court stated:
In the absence of federal legislation to the contrary, the United
States unquestionably has the power to acquire wetlands for waterfowl
production areas, by purchase or condemnation, without state consent.
North Dakota, 460 U.S. at 311.
The unquestioned power of the Federal Government to acquire land and to
manage its affairs has led Courts to treat as presumptively invalid under
the Supremacy Clause [local enactments] that 'substantially impede
federal activities or directly place 'a prohibition on the federal
government.' Don't Tear It Down v. Pennsylvania Ave. Dev. Corp., 642
F.2d. 527, 534-535 (D.C. Cir. 1980). That Court further stated that
unless Congress has declared its property to be subject to local
regulation, "'the federal function must be left free" of regulation.'"
In the case of U.S. v. State of Wash., 872 F.2d 874, 877 (9th Cir. 1989),
the Court of Appeals for the Ninth Circuit stated:
Absent an express waiver of sovereign immunity, the 'activities of
the Federal Government are free from regulation by any state.' Mayo v.
United States, 319 U.S. 441, 445, 63 S.Ct. 1137, 1139, 87 L.Ed. 1504
(1943)(footnote omitted). Congress may waive sovereign immunity and
authorize the states to regulate federal instrumentalities. Id. at 446,
63 S.Ct. at 1140. Waiver of sovereign immunity 'cannot be implied but
must be unequivocally expressed.' United Sates v. Mitchell, 445 U.S.
535, 538, 100 S.Ct. 1249, 1351, 63 L.Ed.2d 607 (1980)(citation omitted).
I could cite many, many more cases on this matter. The question is not
close. It is settled. The question is not new. It has long been
resolved. The Supremacy Clause and the Property Clause mandate the
conclusion. The Federal government holds the authority to manage public
But we cannot stop with this conclusion. As Abraham Lincoln has stated,
the Federal Government is a Government of the people, by the people, and
for the people.
The Federal Government holds authority in trust of all of the people of
the United States. We, as Federal officers and employees, must remember
that we are keepers of the trust. Possessing the authority to manage
lands does not give the sanction of wisdom to every decision we make.
Thus, in every memorandum and letter I have written to the counties over
the past three or so years relating to land use ordinances and related
matters, I have stressed the desire to listen and to work with the
counties on issues of mutual concern.
It is not and cannot be our position that the counties have nothing to
say on the issues. Our own regulations mandate otherwise.
Good Federal stewardship requires Federal officials to act professionally
and with courtesy, even towards those who may be hostile and difficult.
And though Federal officials may receive few thanks from the community,
and many complaints; in my opinion, they function as the glue that holds
our system of Government together. When factions attempt to divide,
Federal officials are there, insisting upon openness towards all. They
are required to display civil discourse in the midst of an increasingly
hostile society. And, in my opinion, many of you in the Forest Service
do it very well.
I recall back a couple of years when one district ranger was being quite
beset with opposition to matters over which she had no control. I am
sure that many of you can relate. We communicated frequently. At one
low point, she expressed despair at being able to continue, because of
local hostility towards Forest Service policy. I reminded her that a
soft answer still turns away wrath.
I note with satisfaction the great job being done by Bob Castenada down
on the Winema. I note with satisfaction the great job being done by Bob
Richmond out in Baker City. I attended a County hearing in Chelan County
on a Land Use Ordinance. I noted with some satisfaction that the Forest
Service was the only State or Federal agency to testify at the hearing.
I wished some of the other agencies would have been there to hear the
complaints of the citizens. Our presence does make a difference. The
counties have often sought our input on these ordinances. We have been
careful to respond. We have written letters to County Commissioners, to
County Judges, to County Prosecutors, to District Attorneys, to almost
anyone who will listen. You have attended meetings. You have worked
with these groups.
I can only urge you to keep up the good work. Don't let anger isolate
you from your communities. Those in the communities need to be made
aware that they have a say in the management of Federal lands. While
Federal land management is dictated by Federal law, Federal law can be
changed. If local counties want to change Federal land management, they
need to work to change Federal law.
But do not go out and encourage the Counties to lobby Congress. Federal
officers and employees are prohibited from lobbying Congress or from
seeking others to lobby Congress. However, you certainly are free to
inform County officials and others that they are free to seek a change in
Congress. That is the essence of our democratic system.
In conclusion, I remind you that the present issue is not new. In 1911,
the Supreme Court considered a question raised by a rancher who was
enjoined from pasturing his cattle on the Holy Cross Forest Reserve
because of his failure to comply with Department of Agriculture
regulations. The argument that was made was stated as follows:
It is contended, however, that Congress cannot constitutionally
withdraw large bodies of land from settlement is then argued that the act
of 1891 [26 Stat. at L. 1103, chap. 561, U.S. Comp. Stat. 1901, p. 1537],
providing for the establishment of reservations, was void, so that what
is nominally a reserve is, in law to be treated as open and uninclosed
land, as to which there still exists the implied license that it may be
used for grazing purposes. But "the nation is an owner, and has made
Congress the principal agent to dispose of its property. . . .
Congress is the body to which is given the power to determine the
conditions upon which the public lands shall be disposed of." Butte City
Water Co. v. Baker, 196 U.S. 126, 49 L. ed. 412, 25 Sup. Ct. Rep. 211.
'The government has, with respect to its own lands, the rights of an
ordinary proprietor to maintain its possession and to prosecute
trespassers. It may deal with such lands precisely as a private
individual may deal with his farming property. It may sell or withhold
them from sale.' Camfield v. United States, 167 U.S. 524, 42 L. ed. 262,
17 Sup. Ct. Rep. 864.
And if it may withhold from sale and being used for grazing purposes,
for 'the government is the charged with the duty and clothed with the
power to protect the public domain from trespass and unlawful
appropriation.' United States v. Beebe, 127 U.S. 342, 32 L.ed. 123, 8
Sup. Ct. Rep. 1083.
The United States can prohibit absolutely or fix the terms on which its
property may be used. As it can withhold or reserve the land, it can do
* * * *
'All the public lands of the nation are held in trust for the people of
the whole country.' United States v. Trinidad Coal & Coking Co. 137 U.S.
160, 34 L.Ed. 640, 11 Sup. Ct. Rep. 57. And it is not for the courts to
say how that trust shall be administered. That is for Congress to
determine. 55 L.Ed. at 574. The court upheld the injunction against the
The law is clear. Under the Property Clause and under the Supremacy
Clause, the Federal government possesses the unfettered authority to
manage public lands. However, such authority exists as a public trust.
I encourage you to continue to use such authority wisely in your
relations with State and local governments.
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