Local Land Control and the United States Constitution

Whatever the Federal government does, within its constitutional authority, controls over any State or local action.11 min read

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.