null IS PERMANENT U.S. OWNERSHIP OF PUBLIC LANDS IN STATES UNCONSTITUTIONAL?

• Jurisdiction: United States

Advanced Public Land Law - The Continuing Challenge of Managing for Multiple Use
(Jan 2017)
CHAPTER 6B
IS PERMANENT U.S. OWNERSHIP OF PUBLIC LANDS IN STATES UNCONSTITUTIONAL?
John D. Leshy
Harry D. Sunderland Distinguished Professor of Law Emeritus
University of California, Hastings College of the Law
former Solicitor, U.S. Department of the Interior
San Francisco, CA

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JOHN D. LESHY is the Harry D. Sunderland Distinguished Professor of Law Emeritus at the University of California, Hastings College of the Law in San Francisco. He has taught property, constitutional law, federal Indian law, water law, and natural resources/public land law. Before joining the Hastings faculty in 2001, he was Solicitor (General Counsel) of the Department of the Interior throughout the Clinton Administration; special counsel to the Chair of the House Natural Resources Committee (1992-93); a law professor at Arizona State University (1980-92); Associate Solicitor of Interior for Energy & Resources in the Carter Administration (1977-80); with the Natural Resources Defense Council (NRDC) in California (1972-77), and a litigator in the Civil Rights Division of the Department of Justice in Washington D.C. (1969-72). He led the Interior Department transition team for the Clinton-Gore (chair) and Obama-Biden transitions (co-chair). He has four times been a visiting professor at Harvard Law School, from which he graduated in 1969 after earning an A.B. at Harvard College. Leshy has published widely on public lands, water, and other natural resources issues, and on constitutional and comparative law, including books on the Mining Law of 1872 and the Arizona State Constitution (2d ed. 2013). He is co-author of Federal Public Land and Resources Law (Foundation Press, 7th ed. 2014, with Coggins, Wilkinson & Fischman) and Legal Control of Water Resources (West Publishing, 5th ed. 2013, with Thompson & Abrams). He has litigated cases in state and federal courts and served on numerous commissions and boards.

December 16, 2016 draft

Copyright ? by John D. Leshy. All rights reserved.

Introduction

This essay is primarily a critique of the "Legal Analysis" prepared by the "Legal Consulting Services Team" for the Utah Commission for the Stewardship of Public Lands.¹ That Paper examined arguments that the U.S. Constitution did not support U.S. ownership of public lands within states, and concluded that "legitimate legal theories exist to pursue litigation in an effort to gain ownership or control of the public lands in Utah."²

This essay disputes that conclusion. It also briefly addresses an argument not made in the Utah Paper, but made by others to the same end, based on the Enclave Clause of the U.S. Constitution.³

The Origins of the Nation's Public Lands

To understand the constitutional basis of the public lands owned and managed by the U.S. government, one must go back to the founding of the nation, after the Declaration of Independence by the thirteen original states on July 4, 1776. Because of very imprecise boundaries in their colonial charters, seven of the original states had claims to western lands beyond the Appalachian Mountains. Six did not.⁴

At the insistence of the latter, led by Maryland, who balked at ratifying the Articles of Confederation that was the original governing framework of the United States, the seven states with claims eventually agreed to cede them to the national government.

In the end, all the founders agreed that, as Maryland argued, the western lands should "be considered as common property," since they were being "wrested from the common enemy by

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blood and treasure of the thirteen States." The national government taking control of that "common property" was the beginning of the nation's public lands.

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Selected Excerpts from Foundational Documents Regarding the Nation's Public Lands

(emphases added)

October 10, 1780, Resolution of Second Continental Congress: Urging the states with western land claims to cede them to the United States, the Congress resolved that these lands would be "disposed of for the common benefit of all the United States," and further specified that the land grant and settlement process shall proceed "at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled."

Virginia's 1784 cession of western lands to the U.S.: The lands shall be "considered as a common fund for the use and benefit of the United States" and the lands "shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever."

Northwest Ordinance of 1787: In providing for admission of new states in Northwest Territory, it specified that those new States "shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers."

The U.S. Constitution's Property Clause: (Art. IV, § 3, Cl. 2) It gives the Congress "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."

The Utah Paper Misreads Constitutional History

The Utah Paper spends considerable time on the early constitutional and related history of the nation as it relates to the public lands. It gets much of that history wrong.

Its first mistake is to assume throughout that the words "disposal" and "dispose of" that appear in the Constitution and other founding documents meant only "divestiture" of ownership or title. The Utah Paper says, for example: "The term 'disposed of' meant 'sold' 'granted' or 'transferred' in the 18^th Century. Webster's Dictionary, 1828."⁵

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This is misleading at best. Webster's 1828 Dictionary gives eight possible definitions of "to dispose of," only three of which connote divestiture. The other definitions include "to direct the course of a thing," "to place in any condition," "to direct what to do or what course to pursue," "to use or employ," and "to put away."

Webster drew upon Samuel Johnson's famous Dictionary of the English Language (3d ed. 1768), which lists several broad meanings of "dispose," including "to regulate," "to place in any condition," and "to apply to any purpose."

Chambers' Etymological Dictionary of the English Language (1904) traces the origin of dispose as borrowed from the Old French from Latin disponere, which meant to "put in order," or "arrange."

"Dispose of" continues to have broad meanings besides divestiture; e.g., when we speak of "disposing of" nuclear waste, we don't mean selling or granting it or transferring title to it, we mean handling it or putting it in a contained condition.

The Utah Paper Argues that the U.S. Constitution Requires that New States Be Admitted on an "Equal Footing" with Existing States. This is Not True.

Among the foundational documents, the 1780 Resolution of the Second Continental Congress provided that the western lands ceded by seven of the original states shall be "settled and formed into" new states with "the same rights of sovereignty, freedom and independence, as the other states."

The Congress of the Confederation's Northwest Ordinance of 1787 called for the admission of new states from the western territory "on an equal footing with the original States, in all respects whatever."

But the U.S. Constitution contains no such language. Instead, Article IV, Section 4, Clause 1, provides simply: "New States may be admitted by the Congress into this Union."

The Constitution does forbid Congress from creating a new state by carving it from territory within the jurisdiction of an existing state, or by combining states or parts of states, "without the Consent of the Legislatures of the States concerned." It also includes specific guarantees of equality between existing and new states, such as providing that each State shall have two Senators.⁶

But the Constitution makes no general reference to states being on an "equal footing" with each other.

The Utah Paper Cherry-Picks Constitutional History on Equal Footing

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The Utah Paper twice⁷ cites the Constitutional Convention's rejection of a proposal by delegate Elbridge Gerry of Massachusetts to give the original thirteen states more representation in Congress than new states. From this, the Paper argues the framers intended to constitutionalize a broad principle of "equal footing."

The Utah Paper neglects to note that, on a motion by delegate Gouverneur Morris, the framers deleted, from the end of the draft clause authorizing Congress to admit new states to the Union, the words "on the same terms with the original States."⁸

The deletion was particularly noteworthy because James Madison unsuccessfully opposed Morris's proposal, arguing that "Western States neither would nor ought to submit to a Union which degraded them from an equal rank with the other States."⁹

The constitutional history thus shows that the framers decided to leave the terms for admitting new states entirely up to future Congresses--other than where specified in the Constitution, such as by giving all states equal representation in the U.S. Senate.

The Utah Enabling Act, the 1894 act of Congress that established the framework for admitting Utah into the Union, like that of many other states, speaks of Utah being admitted on an "equal footing" with other states.¹⁰ But, as explained further below, that same act makes abundantly clear, in several places, that Congress did not intend that its statutory expression of "equal footing" include any suggestion that the state is entitled to public lands the U.S. owns.

General Conclusion: The Nation's Founders Entrusted Public Land Policy, and the Terms of Admission of New States, to the National Political Process.

America's founding generation generally expected that the national political process would, over...