It is hard to imagine that anyone would believe the fallacies peddled by the American Lands Council trying to convince politicians to give away our public lands, but eleven Western state legislatures spent time in the 2015 session entertaining these misguided ideas. These fallacies try to justify robbing the federal treasury and your national heritage by giving away our national lands to the states to be sold off. Now Representative Rob Bishop of Utah is creating a national study group to explore this widely unpopular idea. Below are the American Land Council's ten most frequently cited fallacies and the real facts you should know.
Fallacy 1: Westerners think there is too much national land, it is holding back economic growth, and the states could do a better job of managing it.
Fact: The Western economy has outperformed the rest of the U.S. in terms of growth in employment, population, and personal income during the last four decades in part due to the popularity of national lands. As far as there being too much public lands, a new study shows that on a per resident basis, Western states have more land under private, state and local ownership than many Eastern states. In a recent poll of Westerners, the majority of people across most of the political and ideological spectrum oppose the idea of transferring national lands to the states. The states of Utah, Idaho and Nevada recently studied the costs associated with taking over national lands and all three studies showed that only under very extreme assumptions, and without accounting for the hundreds of millions of dollars to fight wild fires, it might be possible for the states not to lose money. Most of the scenarios studied showed the states losing money, meaning they would need to raise taxes and sell off lands to maintain balanced budgets.
Fallacy 2: The Equal Footing Doctrine means the national lands in the West actually belong to the states not to all Americans.
Fact: Proponents of transferring public lands to the states often refer to the Equal Footing Doctrine as evidence that the Western states have been treated unequally compared to the original thirteen states. The Equal Footing Doctrine holds that all states are admitted to the Union with the same political rights and attributes of sovereignty as the original thirteen states. It does not mean that physical or economic situations among states must be the same. Regarding land sovereignty, the U.S. Supreme Court has consistently found the doctrine only applies to submerged lands (lands below high tide lines and the beds and banks of navigable waters).
Fallacy 3: The Enclave Clause of the U.S. Constitution means that the U.S. can only own lands for forts and military purposes.
Fact: This argument has repeatedly been rejected by the courts including the U.S. Supreme Court which has recognized that the U.S. can both acquire and own property in any state for a wide variety of purposes. The Enclave Clause simply establishes the exclusive jurisdiction of the U.S. over property acquired under it.
Fallacy 4: State Enabling Acts have been misinterpreted all these years and they actually require the transfer of national lands to the states.
Fact: Enabling Acts lay out the terms and conditions under which a new state joined the Union and they were agreed to by each state and Congress. The Enabling Acts for most Western states contain similar language affirming that the state agrees that they "forever disclaim all right and title" to the public lands within the state. Proponents of land transfers claim that state Enabling Acts require the federal government to extinguish its rights to national lands. They are, however, relying on legal interpretations that ignore congressional intent and wrongly interpret legal and historical precedent.
Fallacy 5: Even if the federal government does own the national lands, there is a legal obligation to sell them all and share the proceeds with the states.
Fact: Some argue that Western states expected all national lands to be quickly sold into private ownership. History shows, however, that Congress began retaining significant national lands before many Western states even negotiated entering the Union. In Montana 5.8 million acres were put into national forest reserves while it was still a territory. Arizona entered the Union with over 14 million acres within its boundaries reserved for national purposes. Claims that the states had expectations that all public lands within their boundaries would be sold belie the historical reality of the time.
Fallacy 6: It wasn't until 1976, when the Federal Land Policy and Management Act was passed that Congress decided to keep lands in national ownership which reneges on a 200-year-old obligation that Congress has to sell off our national lands.
Fact: As early as 1832 Congress began retaining nationally significant lands with national parks and national forests soon amounting to tens of millions of acres. In 1934 Congress passed the Taylor Grazing Act reserving about 80 million acres within grazing districts across the West. Similar to reserves for the National Forests these lands were identified as having national value and would no longer be routinely open for sale and disposal.
Fallacy 7: Illinois, Missouri and several other states successfully compelled Congress to transfer title of national lands and this is a precedent that can be used today to compel Congress to transfer national lands to the states.
Fact: Around 1830 five states protested federal land ownership, not in court, but by petitioning Congress arguing that it lacked the power to manage lands within a state after statehood. However, these petitions were unsuccessful and did not force Congress to transfer title to these lands to the states. It was not capitulation by Congress that led to eventual land sales in these states, it was the development of land surveys and homesteading laws.
Fallacy 8: The 19th century public lands policies of Andrew Jackson should still hold today.
Fact: Land transfer proponents are fond of referring to President Andrew Jackson's 1833 message to the Senate laying out his support for land disposal. But to claim that the land policies of 1833 should remain the land policies of the 21st century is akin to saying public policy should never change. President Jackson also signed the Indian Removal Act leading to the forced resettlement of tens of thousands of American Indians to make way for white settlers but that doesn't mean American Indian land policies today should remain as they were in the 1830s.
Fallacy 9: Because the U.S. conveyed federal lands to Hawaii when it became a state in 1959, the U.S. should now convey all nationally owned lands to all of the other states.
Fact: Each state negotiated the individual terms of their admission to the Union and while there are many similarities between states, there are also many differences based on the date the state entered the Union and the geography of the state. The transfer of federal lands to the Hawaii (minus two National Parks and military installations that were established prior to statehood) was not unlike the grants of millions of acres of lands to the other Western states. The federal government is still the second largest landowner in the State of Hawaii.
Fallacy 10: It is simply unfair that there is so much national land in the Western states compared to the states in the East and this injustice should be fixed.
Fact: Land was sold to pioneers in the East because early homesteading laws focused on selling land that could be used for agriculture and family farms. Eastern lands had rich soil and benefited from ample rainfall and proximity to markets. The average annual rainfall in the original thirteen states is 43 inches, while the interior Western states see rainfalls of about one-third that amount requiring extensive irrigation infrastructure to support most agricultural crops. In the 21st century this same quirk of geography and access to public lands is driving population growth in the West.