America’s national public lands are the envy of the world, born in opposition to European models limiting land and resources to the wealthy, and to unchecked exploitation of limited natural resources. Our network of public lands is quintessentially an American heritage that provides us all with abundant natural resources, unparalleled yet affordable recreation opportunities, large connected landscapes and habitats, and a chance to experience the outdoors which helped define us as a people. The New Mexico Wildlife Federation believes that the calls to transfer public lands to the state goes against American history, law, and economics.
THE HISTORY OF AMERICA’S PUBLIC LANDS
In 1778, Maryland led a protest against states with vast western land claims. According to British charters, Virginia, for example, was granted territory west to the Mississippi River and north to Michigan’s Upper Peninsula. Maryland was blocked from westward expansion and threatened not to sign the Articles of Confederation until larger states surrendered their claims to the newly formed United States government. In 1802, these transfers to the federal government were complete and the now Federal government was the landowner of 233 million acres. A year later, the nation doubled in size when President Thomas Jefferson paid France $27 million for the Louisiana Territory (a vast swath of land that ranged from the Mississippi River to the base of the Rocky Mountains). Over the next 50 years, through diplomacy, war, purchase, and treaty the United States became the holder of 1.4 billion acres.
The federal government knew that its greatest resource, and what made America exceptional in the world was its vast landscape (See Richard Slotkin, Regeneration Through Violence: The Mythology of the American Frontier, 1600-1860 (Norman: University of Oklahoma Press, 2000). In 1785, the federal government developed a strategy for how to survey and auction off its western territory. Proceeds from these land sales were to help fund the federal government. However, many settlers ignored the law, refused to pay, and became squatters.
The Homestead Act of 1862 attempted to correct this problem and allowed settlers to claim land by making improvements on 160 acre plots. Over the next 20 years, settlers filed more than 500,000 claims, but only 35% ever “proved up” to allow full ownership (Richard White, It’s Your Misfortune and None of My Own: A New History of the American West. Norman: University of Oklahoma Press, 1993.). For the remainder of the century, the federal government tried to dispose of public lands without seeking return to the Treasury. The federal government attempted to off-load these lands through variations to the Homestead Act and gifts to road companies, railroads, colleges, and mining operations (Patricia Nelson Limerick, Legacy of Conquest: The Unbroken Past of the American West. New York: W.W. Norton, 1987.).
In 1872, President Ulysses S. Grant designated Yellowstone National Park. With this designation, the modern national public lands regime was born. In 1891, the federal government began designating “forest reserves” which grew into the U.S. Forest Service in 1905. In 1903, President Theodore Roosevelt established the nation’s first wildlife refuge on Pelican Island, Florida. The goals of Roosevelt’s designation were to conserve, manage, and restore fish, wildlife, plants, and their habitats.
By the turn of the 20th Century, the modern public lands management system was growing. The 1934 Taylor Grazing Act established the U.S. Grazing Service to manage public rangelands. In 1946, the Grazing Service was merged with the General Land Office to form the Bureau of Land Management within the Department of the Interior. In 1976, Congress passed the Federal Lands Policy and Management Act (FLPMA) to better coordinate the management of public lands through the Forest Service and the BLM. FLPMA officially provided for the retention of public lands under federal management for the multiple use and sustained yield of the land and resources.
THE LEGAL STRUCTURE OF FEDERAL PUBLIC LANDS
FLPMA did not give the federal government control over public lands in 1976. Rather, the Congress acted in 1976 to codify over a century’s worth of legal opinions that found that the federal government would, could, and should hold land in trust for all of the American people.
The legal arguments of those who favor land transfer are three-fold. First, they argue that the Property Clause of the United States Constitution (Art IV, Sec 3, Cl 2) limits the authority of the federal government to own land. Second, they argue that the Equal Footing Doctrine (Art IV, Sec 3 Cl 1) may be used to uphold state authority in the face of federal overreach. And third, that the Enclave Clause (Art I, Sec 8, Cl 17) acts as a geographic limit to the amount of land the federal government may own (10 mi. sq.). Each of these argument has been dealt with at length in the United States Supreme Court; each has been found lacking.
The challenges to federal authority based the Property Clause is inconsistent with nearly 200 years of settled legal interpretation. Since 1840, the Supreme Court has ruled that the federal government has nearly limitless authority over public lands under the Property Clause. In U.S. v. Gratiot, the Court ruled that the federal government was under no obligation to give away public lands. In 1890, the Court further ruled that the federal government had authority over adjacent non-federal lands if activities on those lands would impact federal lands (Camfield v. U.S.). In 1911, the Court ruled that ranching on public lands without a permit was illegal despite the fact that such action was consistent with state law (Light v. U.S.). Six years later, the Court applied the same reasoning in deciding that a power company lacked authority to build a dam on federal lands (Utah Power and Light v. U.S.). Finally, in the 1976 decision in Kleppe v. New Mexico, the Court rejected New Mexico’s claim that it could assert title to wild horses protected under a federal act. In all of the above cases, the Supreme Court described federal control of public lands and associated resources as “without limit” and rejected state claims to authorize private action inconsistent with federal rules. In short, federal authority under the Property Clause is as settled a principle as there is in the law.
Claims that the Equal Footing Doctrine may be relied upon as an exemption from federal authority are equally baseless. In 1963, the Supreme Court limited the use of the equal footing doctrine by stating definitively that the only way, post-statehood, for states to receive title to federal lands not submerged was through an express grant by the federal government (Arizona v. California).
Finally, the Enclave Clause of the Constitution is a favorite of land transfer militants. Supporters argue that the Clause limits the amount of land the federal government may own to the ten square miles of Washington D.C. As the Property Clause discussion clearly demonstrates, nothing could be further from the truth. The Enclave Clause is really more about governmental jurisdiction than ownership. The federal government can have an enclave in which much of the territory is titled to private parties—as is true of Washington, D.C. It’s just that in an enclave, federal rather than state jurisdiction is supreme.
THE ECONOMICS OF PUBLIC LANDS
Nationwide, the outdoor industry generates $646 billion in consumer spending each year, which generates 6.1 million jobs (Tay Wiles, “Outdoor Rec Industry Defends Public Lands,” High Country News Vol. 49, No. 3 (Feb. 20, 2017).). In New Mexico, that’s $6.1 billion in consumer spending and 68,000 direct jobs; Jobs like those of the guides at the Taos Fly Shop where owner Nick Streit paid out $377,000 in wages in 2016. Despite these numbers, on its first day back in session in 2017, the House of Representatives passed a package of rules with a provision by Utah Representative Rob Bishop, that makes it easier to transfer federal lands to the states. The rule states that the federal land transfers “shall not be considered as providing new budget authority, decreasing revenues, increasing mandatory spending, or increasing outlays.” The immediate impact of the rules change is that lawmakers cannot raise a budgetary point of order if a land transfer bill comes to the floor. Under existing House rules, any measure that costs the U.S. Treasury money must be offset by either budget cuts or a revenue-raising provision. In short, despite all of the available evidence, the United States House of Representative stated that public lands have no value.
In New Mexico, there are 22.9 million acres of land are currently in public hands, that’s roughly 30% of the entire state land base. What would the addition of 22.9 million acres of land mean to the state of New Mexico?
First, who would manage this land? The State Land Office is one likely choice, unless the proponents of transfer, who tend to also favor smaller government, are proposing a new level of state government. State Land Offices, by Constitutional mandate, are charged with maximizing profits for their trustees, not managing for multiple uses. Would the State Land Office be charged with a new management structure? Would the newly transferred federal lands be rolled into the State Land Office’s current management regime? Either way, the financial burden place on state government would be serious.
Second, the Forest Service and other federal, tribal, state, and local government agencies work together to respond to tens of thousands of wildfires annually. Each year, an average of more than 73,000 wildfires burn about 7 million acres of federal, tribal, state, and private land and more than 2,600 structures. Wildland fire can be a friend and a foe. In the right place at the right time, wildland fire can create many environmental benefits, such as reducing grass, brush, and trees that can fuel large and severe wildfires and improving wildlife habitat. In the wrong place at the wrong time, wildfires can wreak havoc, threatening lives, homes, communities, and natural and cultural resources. The Forest Service estimates that within a decade, the agency will spend more than two-thirds of its budget, more than $1.5 billion, to battle ever-increasing fires, while mission-critical programs that can help prevent fires in the first place such as forest restoration and watershed and landscape management will continue to suffer.
The State of New Mexico, as of this writing, is facing a major budgetary crisis. In 2016, the entire budget of the state was $6.4 billion. What does fire suppression cost the State of New Mexico? Take the recent example of the Dog Head Fire which burned over 17,000 acres of the Sandias east of Albuquerque. The fire destroyed 24 homes and 21 minor structures, and cost $5.7 million dollars to put out. $6 million dollars to fight a single fire is roughly half a percent of the entire state budget. A catastrophic fire like the 2011 Las Conchas Fire, which burned 160,000 acres, destroyed 63 homes and 50 other structures cost $48,385,000 to contain. Fighting the Las Conchas fire amounts to 1% of the entire state budget of New Mexico, or as much as the entire state government payroll.
What all of this means is that new Mexico can barely afford to pay to fight the forest fires that are certain to break out during any one year. As fire suppression is only one aspect of management, how we ask, is the State of New Mexico to bear the cost of a land transfer if not selling off some or all of the transferred land?
Third, perhaps the state would welcome the transfer and place management under the direction of The State Parks Division. In 2015, the New Mexico legislature appropriated $500,000 from the game protection fund to fund a “flat broke” State Parks Division; that was in addition to a $500,000 appropriation from the Trail Safety Fund. The Forest Service manages more than 180 campgrounds and picnic areas in New Mexico; BLM manages nearly 40 recreation areas. New Mexico’s state parks division can’t afford what it has. Where would the State Parks Division get the money to manage these new areas?
In short, the State of New Mexico cannot fiscally manage the addition of 22.9 million acres of land. In order to lessen the burden of this “gift” the state would have no choice but to sell off some of the transferred lands. Clearly, this sale would create only a one-time windfall for the states but destroy the long-term economic benefits of recreation, timber, grazing, mining, oil and gas exploration, and other activities that currently take place on public lands.
The New Mexico Wildlife Federation despises an overreaching government as much as anyone, but the word being overlooked by the land transfer side is “public.” What’s at stake is beyond any one person or the political concerns of today. The concept of public land is rooted in our history—the direct result of our forefathers facing punishment for entering “the king’s woods” or killing “the king’s deer.” Of course there is room for improvement regarding the management of our public lands, but transferring these lands to the states is no more an answer than is holding them at gunpoint. Public lands are the endowment of future generations of Americans. Once public lands are transferred to the states, they are no longer yours and mine—they would be managed like other state lands, complete with all of their restrictions. This crusade to transfer American public lands to the states must be seen for what it is: the latest outgrowth of an anti-government agenda which seeks to undermine the very foundations of this great nation.
By Todd Leahy, Deputy Director
Todd has a PhD in Native American studies and practiced law as an environmental attorney.