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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.

Introduction

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 an expert.

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 lands.

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 particular State.

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. 571.

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 state.

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 unambiguous.'

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.'" Id.

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 lands.

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.

Conclusion

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 so indefinitely.

* * * *
'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 rancher.

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.

From the Econet Western Lands Gopher Service. URL:
gopher://gopher.igc.apc.org

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