Equal footing, county supremacy, and the western public lands.

• Author: Conable, Paul

1. INTRODUCTION

   In recent years, a movement to wrest control of public lands from the federal government has arisen in the rural west.(1) A loose confederation, which has been labeled the "county supremacy movement,"(12) is attempting to dislodge a federal land management bureaucracy it believes has become intolerably intrusive and unresponsive.(3) County supremacists have argued their positions in federal court(4) and in the press.(5) Although land management disputes have been a fact of life in the rural west for years, this latest wave of activists has succeeded in focusing an unusual amount of public attention on its claims. Whether these claims are likely to prevail or warrant review in the United States Supreme Court is another question.

   Federal land management issues are of particular concern in the rural west because of the massive size of the United States land holdings in the region. Over 350 million acres of land in the 11 continental western states(6) are federally owned.(7) On a state-by-state basis, the federal government owns between twenty-eight percent (Washington) and eighty-two percent (Nevada) of the land in the western states.(8) Generally, these federal lands are managed for multiple uses by one of the federal land agencies (usually the United States Forest Service or Bureau of Land Management) with a percentage of revenues generated from the land going to the county and state in which it is located.(9) With the advent of the environmental movement in the 1960s, pressure on the federal land agencies to manage for purposes other than traditional resource extraction (such as mining, grazing, and timber) became stronger.10 As a result, some rural westerners who depended on the federal lands for their livelihoods became increasingly vocal about federal land policies.(11)

   Debate over the disposition of federal property is as old as the United States itself.(12) American history has been marked by a series of efforts by western states and citizens to influence federal land management or, more directly, to wrest control of these lands from the government in Washington.(13) The most recent and probably best known of these efforts was the "Sagebrush Rebellion" of the late 1970s and early 1980s.(14) lake these earlier movements, the present-day county supremacy movement has the general aim of reducing federal presence on western lands.

   Though similar in general philosophy to these earlier movements, the new movement bears some A" differences in its legal arguments, tactics, and the virulence and passion of its proponents. The Sagebrush Rebellion of fifteen years ago was forcefully argued, but generally peaceful in nature.(15) The county supremacy movement, on the other hand, has been accompanied by a wave of violent attacks on federal land officers,(16) and the rhetoric of movement members is often dissonant with overtones of impending violence and conflict.(17) The greatest victory for the Sagebrush Rebellion was probably the passage by the State of Nevada of a bill denying Bureau of Land Management (BLM) authority over the land that the federal agency managed in Nevada.(18) By contrast, the high point of the county supremacy movement to date has been July 4, 1994, when Richard Carver, County Commissioner of Nye County, Nevada, bulldozed open a closed United States Forest Service road in Toiyabe National Forest.(19) Carver's action, which supporters have likened to Rosa Parks's bus ride and the minutemen's stand at Lexington and Concord,(20) illustrates a major difference between current land rebels and their predecessors. The Sagebrush Rebellion states pawed legislation, but did not take direct action to control the subject lands.(21) At least some of the county supremacists, however, seem determined to force confrontation.

   Carver's bulldozer escapade triggered a federal government lawsuit against Nye County, which resulted in a district court opinion affirming federal ownership of the disputed lands.(22) Nye County has apparently decided not to appeal this decision.(23) As a result, there is still no federal appellate opinion directly addressing the county supremacists' claim. However, another case presenting these issues has been appealed to the Ninth Circuit,(24) and it appears that there could be a relevant appellate ruling in the near future. In addition to pursuing their objectives in federal courts, county supremacists have promoted local ballot initiatives aimed at transferring federal land to state ownership.(25) Initiatives attacking federal land ownership have become commonplace in rural western county elections. When he bulldozed open the Toiyabe National Forest logging road, Richard Carver was acting under color of a Nye County ordinance rejecting federal authority to own land in the state, except for the very limited purposes listed in the Enclave Clause of the U.S. Constitution.(26) Over seventy western counties have passed similar ordinances.(27)

   The legal reasoning behind these ordinances is similar to that advanced in United States v. Gardner(28) and United States v. Nye County, Nevada.(29) County supremacists claim that the federal government has no power to own land within the borders of a state, except for the limited purposes enumerated in the Enclave Clause.(30) Less than one percent of federal land is held under Enclave Clause powers;(31) the rest is held pursuant to the Property Clause.(32) County supremacists argue that Property Clause lands should have passed to the states upon their admission to the Union under the "equal footing doctrine."(33) The equal footing doctrine mandates that new states be admitted to the Union as equals of the existing states, in terms of power, sovereignty, and freedom.(34) Although all of the continental western states were admitted with clauses in their admissions acts disclaiming any right to unappropriated public lands within their borders, county supremacists argue that these clauses are unconstitutional under the equal footing doctrine, and therefore invalid.(35) Much of the debate during previous Sagebrush Rebellions centered around how the federal government should manage western lands.(36) County supremacists, using the equal footing doctrine, are advancing a more radical agenda: the immediate transfer of roughly 350,000,000 acres(37) of public lands in the west from federal to state control.(38)

   This Comment assesses the legal validity of the county supremacists' arguments and discusses whether their ordinances will, or should, survive federal court review. Part II provides background on the public lands question in the formation of the United States and the admission of new states to the Union. Part III explores the constitutional basis for the county supremacy arguments, focusing on the Enclave Clause, the Property Clause, and the equal footing doctrine. Part IV concludes that while the wisdom of current federal land management policies is debatable, the legal foundation of federal land ownership is well established and western counties are wasting money(39) and time in their attempts to gain control of federal lands through county initiatives and the courts.

2. Historical Development of the Public Lands

   The legal arguments of the county supremacists are based largely on events that occurred during the formation of the United States and the admission of the western states into the Union. Some history is necessary to evaluate these arguments. This Part will focus on the admission of states formed from the public lands, since these states are the particular focus of the equal food" debate.

   The original thirteen colonies declared their independence from Great Britain in 1776. In declaring themselves sovereign states and disclaiming all political connection with their former ruler, the states became owners of the unappropriated lands with their boundaries.(40) Since the original thirteen states declared themselves independent and sovereign over their lands prior to the formation of the federal government, these states could contain no federal public lands at the time of their formation.(41)

   Seven of these original states also claimed colonial holdings outside their boundaries.(42) These "unappropriated or crown lands"(43) were claimed under colonial land grants from the English monarch.(44) The other six states, which did not own lands outside their borders,(45) were concerned that their lack of western lands placed them in an inferior position to their landed sister states.(46) Maryland was particularly alarmed at this disparity and refused to ratify the Articles of Confederation until its concern were addressed.(47) Finally, in 1780, the Congress of the Confederation issued a proclamation recommending that states with western lands pass legislation ceding that land to the federal government.(48) Shortly thereafter, the Congress issued another proclamation, resolving that lands so ceded to the federal government would be disposed of for the benefit of the United States and formed into states with "the same rights of sovereignty, freedom, and independence, as the other States."(49) This mandate is the root of the equal footing doctrine; indeed, the term "equal footing" is simply shorthand for "the same rights of sovereignty, freedom, and independence."(50)

   Mollified, Maryland ratified the Articles of Confederation on February 2, 1781.(51) The states with western land eventually ceded most of this land to the United States between 1781 and 1802.(52) Thus the federal government acquired the first of the federal public domain, by cession from the states, with the proviso that k be disposed of for the benefit of all the states.(53) These lands were subsequently governed under the Northwest Ordinance of 1787(54) (concerning lands north of the Ohio River) and the Southwest Ordinance of 1790.(55) These two ordinances are substantially identical.(56) Nine new states were formed from this first federal public domain.(57)

   Two...