Can the Federal Government own Public Lands?
Yes, almost two thirds of Idaho is currently “owned” by the Federal Government. Can it be so? Long established by precedent, some of it going back over a century, we have come to believe in “Federal Lands.”
Starting with "Forest Reserves" created by President Theodore Roosevelt under Presidential Proclamations starting in 1903, Federal holdings in several forms occupy much of Idaho’s public real estate. Occupy, Administer, regulate, control and manage are proper terms when the federal government doesn’t actually "own" it. After the forest reserves were established, those lands were transferred to the newly created United States Forest Service (USFS) for administration. Much later, the Congress created the Bureau of Land Management (BLM) that further assumed "ownership" of more lands in Idaho and other states. The National Park Service (NPS) also administers some "National Monuments" and "National Parks."
Beginnings
Pushed on Idaho in the early 1900s, the Forest Service started with some seemingly good ideas. The Timber Barons were trying to buy up much of our new state and one of America’s first foresters and friend of President Teddy Roosevelt, Gifford Pinchot, was the champion of that push to keep it public. Popular slogans "preserving the forest through use" and "helping the small man make a living, rather than the big man making a killing" were among the propaganda of that day.
Teddy Roosevelt, an active outdoorsman, also established Yellowstone Park and other natural wonders as "National" Treasures. Now well established, at least in appearance, if not in fact and law, Idaho and its’ public resources fall largely under the control and administration of the Federal Government.
The Constitutional Facts of Life
But, can it be so? Governments exist and operate because the constitutions authorize and mandate governmental operations and powers. To understand what can and can’t be done we need to look at the constitutional facts of life. We might as well start at that fulcrum of power between state and federal governments, The Tenth Amendment:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
When the delegates from the original thirteen states gathered in 1787 to improve upon the original Articles of Confederation and created the US Constitution, some felt that just giving defined powers to the federal government was not enough. There should be some expressed limitations on power. So in 1791, the Bill of Rights was passed defining the limits of federal powers, including the Tenth Amendment. What are the federal powers regarding land issues within a state? Only two.
One is Article One, Section Eight, Clause 17 that provides:
"The Congress shall have Power… To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;." (emphasis added)
And two, Article Four, Section Three provides in part:
"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." (emphasis added)
So the federal government CAN own what is now Washington D.C. and Forts, Magazines, Arsenals, Dock-Yards and other needful Buildings IF purchased with the consent of a state’s legislature. And the federal government CAN dispose of and regulate its’ territory or property. Period!
Read the whole Constitution yourself. It’s not a large document. Can you find any other mentions of federal powers over property? The Tenth Amendment limits federal power to those delegated powers in the Constitution. That’s it!
There is no power to create Forest Reserves, nor the BLM, NPS, USFS, National Parks and Monuments in a state, National Forests and Rangelands or BLM Property! None! Nada! Prohibited!
What else would the Tenth Amendment limit if it were enforced? Most of today’s federal agencies and many federal laws would vanish with the enforcement of the Tenth Amendment.
The Trail of History
In a treaty with Great Britain, popularly known as the Oregon Treaty, and from treaties with the Indian tribes, the federal government "acquired" the present Northwestern part of today’s nation. Most of what is now Idaho was to become Indian reservations until gold and other valuable interests were discovered.
The federal government then imposed new treaties taking away more native lands, fomenting wars with the tribes, and through conquest and subjugation, established a territory that would later be divided into several territories. However right or wrong the treatment of the Indians and the broken treaties were, this new territory was formed and became a federally-held property.
The Idaho Territory was first broken off from the very large original Washington Territory, north of the Oregon Territory. Several years later, the Wyoming and Montana Territories were broken off from the Idaho Territory, giving our state its present day shape. In 1890, the Idaho Territory became a state, admitted to the American Union, with its’ own constitution.
When the Idaho Admission Act passed Congress, several key foundational matters for the ownership of lands in Idaho became law. The Admission Act appropriated certain lands as endowment lands to be held by the new state for the benefits of the endowments, mostly for schools. But most of the lands remained unappropriated. The Admission Act also "accepted, ratified and confirmed" Idaho’s new constitution, cementing the Idaho Constitution’s provisions as the Supreme Law of the new state.
Clearing the Title
The unappropriated lands within the state needed a clear chain of title so the state could move forward to development of the unappropriated public lands. Article Twenty-one, Section Nineteen, of the Idaho Constitution states in part:
"And the people of the state of Idaho do agree and declare that we forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof … and until the title thereto shall have been extinguished by the United States, the same shall be subject to the disposition of the United States…"
This provision gets a little sticky with various interpretations. On the one hand the first part provides that "the people," through the 64 people who signed the 1889 Idaho Constitution, gave up their interest in the unappropriated public lands, essentially quit claiming any individual interests to the unappropriated lands and clearing the way for the new state to become the sole holder of title to those lands. It is key to note that it was "the people" who disclaimed all right and title, not the state.
But the second part gives the impression that the federal government retained ownership "until the title thereto shall have been extinguished by the United States, the same shall be subject to the disposition of the United States…". It is also important to note, this provision was already in the Idaho Constitution when it was signed by those 64 Idahoans in 1889, before the Idaho Admission Act was passed in 1890, creating Idaho’s statehood. In 1989 Idaho was still a territory and "subject to the disposition of the United States."
So Who Owns Idaho?
Did the United States retain title thereto? Article Ten, Section Four of the Idaho Constitution says no:
"All property and institutions of the territory, shall, upon the adoption of the Constitution, become the property and institutions of the state of Idaho."
Seems pretty clear that the federal government’s Idaho Territory held the property of Idaho, and when state became admitted, and the Idaho Constitution was "accepted, ratified and confirmed" by the Idaho Admission Act passed by Congress, the Congress exercised its power to "dispose of…the Territory or other Property belonging to the United States."
Under Article Ten, Section Four of the Idaho Constitution the unappropriated public lands became the property of the new state of Idaho, with clear title under Article Twenty-one, Section Nineteen, of the Idaho Constitution where "the people" declared "that we forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof." This puts the new state essentially in the position of a trustee holding the unappropriated lands by the state.
Equal Footing
But there’s one more clincher to the deal. As a new state in the American Union, Idaho joined on an Equal Footing basis. The "Equal Footing Doctrine," with roots in the much earlier Kentucky Resolution, essentially declares that new states entering the American Union are on an equal footing with the original thirteen states, and the same powers and authorities apply equally to all states.
That means the limitations on federal powers imposed by the Tenth Amendment apply to Idaho and the limitations on federal acquisition of lands in the new state imposed by Article One, Section Eight, Clause 17 of the US Constitution also apply.
Since statehood in 1890, the federal government can only purchase lands in Idaho with the consent of our legislature, and only for the purposes of establishing Forts, Magazines, Arsenals, dock-Yards and other needful Buildings. It all became Idaho’s lands at statehood and the federal government can only act within the confines of the federal and state constitutions. These are the Constitutional Facts of Life.
The Occupation
Idaho’s public lands are almost two-thirds occupied by federal agencies who administer what was unlawfully taken. The public lands in Idaho are administered as if owned by the federal government. The federal government has no constitutional authority to do this, as the enumerated and delegated powers of the federal government do not authorize anything regarding public land management. Zero!
Across the spectrum of federal government activity we see huge excess and usurpation of federal powers. Idaho’s public lands are only one example of federal violations of constitutional limitations.
Options?
So what does Idaho do now? That is an even larger story or two. How does Idaho take its’ property back? And the much bigger story is, what will Idaho do with its public lands, once recovered?
A longstanding precedent of occupation almost grants squatter’s rights to the feds. They have occupied much of Idaho, in some cases for over a century. Where would a state go to prove what is right, and be "granted" the authority to recover the public lands that properly belong to the state?
There are many options, none of which show much promise when looked at carefully. Perhaps history and current events can provide a view of the possibilities.
Judicial Challenge
Many will say go to court and prove the case. Which court, State or Federal? How do such things usually turn out? The courts are often corrupt. There is no effective enforcement of law upon the judiciary. Without the possibility of any real consequences, the judiciary is free to use their "discretion" to issue "opinions."
If Idaho wins, how is it enforced? Ask a Federal Court to give back two-thirds of Idaho to the state? Mega billions of dollars in natural resources: timber, precious and strategic metals and minerals, agricultural production, and recreational opportunities in the natural wonders of the Gem State are at stake here. The legal realms are full of engineered treachery. Power rarely concedes to such a contest.
Federal Judges are appointed and hold their office "during good behavior." They essentially have a job for life. Why? The only way to remove a federal judge for bad behavior is through the mechanism of impeachment by Congress. Has that ever happened? As Thomas Jefferson pointed out, "impeachment is a mere scarecrow."
Add to that, the judicial doctrine of "Absolute Immunity," the self-declared power the judiciary has given themselves for protection from any liability for misconduct. As Lord Acton said, "Power corrupts, and absolute power corrupts, absolutely."
Go to a state court for relief? Idaho courts might be a better forum for such a contest. But state cases can be removed to federal court and tried there.
Yes, the state judiciary is subject to regular elections, but long after the fact. Their opinions and memorandums have already become case law, unlikely to be overturned in subsequent cases. The judiciary is cloaked in black robes and the citizen electorate rarely has any knowledge of their conduct.
Even if tried in a state court, how would a state court enforce its’ order if Idaho did prevail? Call out the National Guard? Not a judicial power.
On the other side, if Idaho loses, judicial precedent is set, potentially closing the door for further contest and recovery. Court is not a good option. Ask anyone who has been there.
Legislative Decree
The Idaho Legislature could pass a Joint Resolution or even laws mandating return of Idaho’s occupied lands. It could be an abrupt, total recovery or a progressive return, easing the transition. How will that work out? Look to Utah, one of the states that led the charge for recovery of federally occupied state lands.
Utah passed some laws, gave the federal government an order to return ownership of the lands and a deadline to do so. What happened? The deadline passed and Utah remains occupied territory. The feds have not left as ordered.
An Act of Congress
Idaho could ask Congress to dispose of the various federal agencies holdings back to the state in some manner of an orderly transition. Yeah, right! Look at the train wreck Congress has become. Could anyone imagine the current Congress handing over mega billions of dollars in resources and relinquishing the longstanding claims to "ownership" and control of our state? Not gonna happen.
Executive Remedy?
Maybe Idaho’s Governor could issue more of those ever popular Executive Orders and mandate the recovery of Idaho’s lawful Property. Maybe even call out the National Guard. But the current occupant of the Governor’s office is too busy collecting and doling out billions in federal funds. Would he be willing to forgo the big bucks from the feds and get Idaho on track to produce actual wealth from Idaho’s own resources? "Little" chance that would ever happen.
The Hard, But High Road
In the Supreme Court’s Obamacare decision, Justice Roberts said, "The states are sovereign and sometimes they should act like it." Isn’t it about time for Idaho to stand up and be a state? Again, let’s use history as a guide.
In America’s departure from the Rule of Kings and the beginning of the American experiment in self-governance, a pivotal document was forged: The Declaration of Independence. It declares many things to be self-evident but its’ concluding paragraph shows Idaho a path forward. But only if Idaho is willing to take the high road, on a hard path.
"We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." (emphasis added)
By sovereign Declaration, Idaho can give notice to the federal occupant and usurper of Idaho’s lands to remove itself from Idaho and in some manner compensate Idaho for the long occupation of Idaho’s lands. By Declaration, Idaho and its people, if we are willing to stand, can recover the vast resources and opportunities that the Public lands can afford us. It might look something like this:
We, therefore, the Representatives, Senators, Governor, elected officials and People of Idaho Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of the state of Idaho do solemnly publish and declare, that we are, and of Right ought to be a Free and Independent State, lawfully owning all public lands within our State’s borders; and that as a Free and Independent State, Idaho has full and exclusive Power to Manage our Public Lands for the benefit of the Idaho People and to do all other Acts and Things which Independent States may of right do. And the Federal Government agencies: The Unites States Forest Service; the Bureau of Land Management, and the National Park Service shall henceforth cease and desist any activities in this State and leave behind all infrastructure, tools, supplies, vehicles and equipment as compensation for the unlawful occupation and usurpation of Idaho Public Lands. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor."
A big, bold step, but hey, it’s precisely the step made America happen. Do we want to manage Idaho for our mutual benefit? Create many opportunities for ourselves and our posterity by responsible resource production and other possibilities afforded by Idaho’s natural wonders?
We could pay little or no taxes by supplanting them with revenues from mining, logging, ranching, farming, and recreational opportunities. Is Idaho ready to declare a better future, stand for it, and build it?
Ample Possibilities
Imagine, if you will, a prosperous state with abundant beauty and natural resources and ample opportunities to enjoy, live and work in such a natural state. A state where very little taxation is needed because the government is funded largely from the positive management of its natural resources. A state that keeps its natural wonders perpetually productive and preserved for the generations to come.
Yes, it’s a bit utopian to think government can actually get things done right, but the opportunity is here. Using a stewardship model, logging, mining, farming and ranching along with recreation can pave the way forward for the Gem State of Idaho to live up to its motto: Esto Perpetua, "it is forever." Working in the public sector, managing Idaho’s public lands within a land agency or in the private sector, as stewards contracting various operations, services, and opportunities, Idahoans can turn the natural wonders of Idaho into revenue for civic benefit, business success and public enjoyment.
But the huge challenge is how can Idaho manage the 62% of its federally occupied ground? The opportunities are equally large!
Can Idaho manage its public lands? An entirely new management system needs to be developed. Idaho is not ready. Not even close.
A New Mandate
State Endowment lands, managed by the Idaho Department of Lands have a singular constitutional mandate. Manage them for the maximum long term benefit of the endowments. This great idea began at statehood to let the resources of the lands provide for schools, etc. But that is a singular mandate, not a multiple use mandate. And technically, the Endowment lands are not "public lands." They were appropriated in the Idaho Admission Act as a state resource solely reserved for the endowments.
Developing a new mandate is a huge political question. It’s not just an administrative issue. The Idaho Constitution will need amending to give direction and authority. The Legislature will have much work to do, providing a legal framework to define management criteria, administrative structure and agency actions. The actual administrating agency will have a long process of developing policy and procedure to meet the needs of Idaho’s natural world and the stewards who would contract various management activities, services and operations.
Timber, mining, grazing, agriculture, commercial recreation interests, and the public all need a seat at the table during what will be an ongoing process of developing the management of Idaho’s lands. Citizen groups of many types will also need to have a say in how Idaho becomes Idaho and stays Idaho, Esto Perpetua.
The High Ground and the Middle Ground
There is a great variety of natural opportunities with the recovery of Idaho’s public lands. I like to use the terms "High Ground" and "Middle Ground" to define the general types and uses of the public lands. There are likely some lands that fall into a category of "Low Ground." It’s not necessarily about actual elevation, but rather management approach and the nature of the lands themselves.
Central Idaho in particular, and many other parts of Idaho are natural wonders. Rugged, still pristine, and to a great extent, impenetrable fortresses of "Nature and Nature’s God." Much of it is currently locked up in federal wilderness. This "High Ground" needs an element of preservation for generations to come, but with practical Idaho solutions that balance responsible use with keeping nature, nature. How will Idaho keep this "High Ground" pristine and secure from the ravages of corporate interests and the raw power of big money?
Vast portions of the occupied Idaho lands fall under "Middle Ground." Reasonably accessible, full of resource and recreational opportunities, this is where Idaho can shine using Gifford Pinchot’s sales pitch for creating the Forest Service long ago: "preserving the forest through use." A multiple use management regimen can incorporate resource producers and recreational interests under common sense guidelines and policy.
And then there is the "Low Ground." Easy access, often close to urban and suburban areas, the "Low Ground" public lands are possibly better for agriculture or conveyance to City or County Parks or possibly sold to the private sector on a limited basis. Idaho needs to make those decisions.
Managing within Constitutional Compliance
There is a problem. We already have too much government. Article 4, section 20 of the Idaho Constitution requires the executive branch to have no more than 20 Departments. Out of hand and not in compliance, the state executive branch has in excess of 150 agencies, commissions, bureaus, and departments. To circumvent this constitutional mandate the executive branch created the "Bureau of Self-Governing Agencies." This is a catch all scheme for the ever growing administrative state. We need to rein this in, not create more agencies to manage Idaho Public Lands.
Currently, The Idaho Department of Lands (IDL) manages the Endowment Lands and has another division that manages forest and rangeland fires. One solution is to expand the current IDL to 5 divisions. Parks, Endowments, Fire, The Middle Ground management, and an Idaho Wilderness division for the High Ground.
The Parks division could continue to manage state parks, but also absorb and manage the Forest Service and BLM campgrounds and other recreational sites. An Endowment division would continue its current task of managing the existing endowment lands. The Fire division well, puts out fires. The Middle ground in Idaho presents both great opportunity and a challenge for the diversity of public interests and resources. It needs its own division to manage those opportunities on the vast amount of accessible Idaho lands. And a Wilderness division is needed to keep the High Ground pristine, yet useful under Idaho terms.
Already there is some crossover assistance between the IDL and State Parks. Bringing these agencies under a single Lands Department will foster greater cooperation and better management across the spectrum.
Stewardship
Let’s keep Idaho, Idaho with Idaho stewards managing Idaho. Using the stewardship model, Idahoans could contract to manage a stewardship area and manage a particular resource or activity under the direction and oversight of a state land manager from one or more of the new divisions. More than a timber sale or mining or grazing lease, the steward could also be responsible for the stewardship area and its long term development for multiple uses. Similarly, commercial recreation operations could steward an area and take on greater responsibility for management and enhancement of the resource. Stewards, with a long term interest under contract can partner with state land managers to implement Best Management Practices on our public resources.
In addition to providing better long term management in each stewardship area, the stewards will generate revenue from the resources and that can be directed towards various government funds for public benefit. Those revenues can also fund the cost of management by the state’s land agency. Currently, with the IDL timber program, 15% of the timber revenues go towards the cost of managing state timber and 85% goes to the Endowment Funds to support schools, etc. Imagine what 62% of Idaho’s lands can add towards revenues. The current Endowment Lands are only about 5% of Idaho’s ground.
Where Will the Money Go?
How will Idaho use the resource revenues? What taxes can we eliminate when they are replaced by the productivity of nature? What will be the fight over which component of government gets what, monies and how will it be managed? These will be ongoing political questions. Resource markets change and can be volatile. How will government cushion its budgets when resources become the main source of operating funds?
Property tax is the main funding source for county and city governments and the many local taxing districts. If we eliminate property tax and replace it with public land resource revenues, how will it be dispersed to local government? Not all counties have the same public resources. It could go into a special fund and be sent to the counties on a per capita basis.
Can we eliminate sales tax and/or income tax that the state government relies on for revenue? What will be the formulas for land resource revenue collection and dispersement? These are big political questions to be answered as part of the huge transition from a taxation basis for government, to a resource revenue production basis.
Sale of Lands?
And there’s another big political hot potato. The sale of public lands. Some advocate for selling public lands and putting them into the private sector like it is back East. They say it would add more property tax revenue. Have you ever tried to go camping or hunting back east? They have very minimal public lands.
Property tax, in fact is the elimination of private property, subject to confiscation for failure to pay property tax. Rising property values already tax people out of their homes and are a hidden factor in higher rent. The collection of property tax by counties is a very complex, intrusive, and cumbersome process for county government. Restructuring the funding process for county government will be challenging. The political question of eliminating property tax and making property actually owned is already a hot item. Resource revenue provides a solution. We can keep public lands public and eliminate property tax with resource revenues instead.
What about that beautiful wilderness that is a large part of Idaho? Let’s keep nature, nature and manage Idaho Wilderness under Idaho wilderness management criteria. Wilderness has many uses, some of which generate revenue like commercial recreation and small scale mining.
There may need to be some provision for the sale of limited amounts of public lands for certain purposes. The Idaho Constitution currently has a provision for the limited sale of school lands. But for the most part, let’s keep Idaho Public Lands public.
Who Will Do the Work?
Our educational institutions need to look towards training people to be both land managers and stewards. Real world training to actually get the job done. The great opportunities ahead will need people to make it happen. This will take a paradigm shift from our current educational models.
Imagine…
Imagine, if you will, having no property tax or income tax or sales tax. Imagine a federal government that fits inside the 10th Amendment. Imagine a prosperous, productive Idaho with a great future for the managers and stewards who put their boots on the ground and turn resources into revenue. Imagine an Idaho where all of us can enjoy our Gem State and its natural beauty, Esto Perpetua!
©Copyright 2024 by Hari Heath. Compiled and revised from a 3 part article previously published in The People’s Pen newspaper. Permission is hereby granted for non-commercial republishing of the intact, unedited article for informational and educational purposes, and for brief quotations.