The Property Clause and Its Discontents: Lessons from the Malheur Occupation

781

The Property Clause and

Its Discontents:

Lessons from the

Malheur Occupation

Michael C. Blumm*

Olivier Jamin**

The occupation of the Malheur National Wildlife Refuge in Oregon by a

group of armed militants led by Ammon Bundy during January 2016

spotlighted public land management for a largely oblivious American

public. The militants’ month-long occupation was only the latest of several

armed confrontations in recent years, one of them at Bundy’s father’s ranch in

Nevada. What made the Malheur incident unusual was not only the length of

the occupation but also the claims of the militants that their occupation was

based on constitutional principles. We examine those claims in this Article and

find them meritless, wholly inconsistent with a long line of Supreme Court

interpretations of the plenary federal power to manage federal public lands

under the Property Clause.

Although there is no credible legal case against federal ownership and

management of public lands, the militants and their sympathizers may succeed

in their efforts to divest federal-land management in the political arena,

epitomized by the 2016 Republican Party platform endorsing federal

divestiture. Conveying federal lands to the states, as urged particularly by the

state of Utah, however, would be a recipe for privatizing a common birthright

of all Americans, inconsistent with moral, if not legal obligations to future

generations.

Introduction ..................................................................................................... 782

I. Background ......................................................................................... 787

A. The Arizona Standoff ................................................................... 787

B. The Bundy Nevada Standoff ........................................................ 788

DOI: https://dx.doi.org/10.15779/Z38W66977S

* Jeffrey Bain Faculty Scholar & Professor of Law, Lewis and Clark Law School.

** J.D. expected 2017, Lewis and Clark Law School; B.A. political science, Gonzaga University.

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782 ECOLOGY LAW QUARTERLY [Vol.43:781

C. The Utah Transfer of Public Lands Act ....................................... 789

D. The Galice Mining Standoff–Rogue River .................................. 792

E. The Malheur Refuge Occupation ................................................. 793

II. The Property Clause and Its Interpretation .......................................... 794

A. The Northwest Ordinance ............................................................ 794

1. Managing Western Settlements ............................................. 796

2. Prohibiting Slavery in the Northwest ..................................... 797

3. Reducing Inequalities Among States ..................................... 798

B. Judicial Interpretation of the Property Clause .............................. 798

1. Disposing of Federal Lands ................................................... 799

2. Managing Federal Lands ....................................................... 801

3. Protecting Federal Lands ....................................................... 803

C. Congressional Interpretation of the Property Clause ................... 805

III. The Discontents’ Legal Claims ........................................................... 810

A. State Water Rights as a Limit on Federal Land Use Discretion... 811

B. Public Grass as a Private Property Right ..................................... 812

C. The Enclave Clause as a Limit on Federal Lands ........................ 814

D. The Supreme Court’s Alleged Misinterpretation of the

Property Clause ............................................................................ 814

E. Utah’s “Equal Sovereignty” and “Equal Footing” Claims .......... 816

IV. The Discontents’ Political Prospects ................................................... 817

A. Congressman Bishop’s “Grand Settlement” in Utah ................... 818

B. Local Land Planning Ordinances ................................................. 819

Conclusion ...................................................................................................... 820

Postscript ......................................................................................................... 824

This land is your land, this land is my land

From California to the New York Island

From the Redwood Forest to the Gulf Stream waters

This land was made for you and me.

This Land is Your Land, Woodie Guthrie, 1940

INTRODUCTION

In early 2016, a group of armed militants seized control of the Malheur

National Wildlife Refuge in southeastern Oregon and occupied the refuge for

some forty-one days.

Originally a protest against a sentence imposed on

1. The occupiers took over the refuge on January 2, 2016, after a rally for ranchers Dwight and

Stephen Hammond, who were imprisoned for setting fire to federal Bureau of Land Management lands.

The occupation lasted forty-one days, ending on February 11, after the death of one of the protesters,

Robert “LaVoy” Finicum, in a confrontation with the police on January 26. See Conrad Wilson & John

Rosman, Malheur National Wildlife Occupation Ends, OPB NEWS (Feb. 11, 2016, 5:58 PM),

http://www.opb.org/news/series/burns-oregon-standoff-bundy-militia-news-updates/malheur-

occupation-ends/.

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2016] THE PROPERTY CLAUSE AND ITS DISCONTENTS 783

federal public-lands grazers,

the incident quickly devolved into an effort led

by Ammon Bundy to challenge federal ownership of western lands.

The

occupation made national news and eventually led the occupiers to jail.

Bundy

and his fellow occupiers loudly challenged—without warrant—federal

ownership of land as unconstitutional.

The Malheur Refuge occupation was not unlike other recent armed

protests over federal land ownership and management. Two years before,

Bundy’s father, Cliven, led armed resistance against attempts to enforce federal

grazing regulations and fees.

And just a year before the Malheur Refuge

occupation, in southern Oregon’s Rogue River Basin, dredge miners with

federal claims ignored a cease-and-desist order issued by the federal Bureau of

Land Management (BLM) and proceeded with armed resistance.

A decade

earlier, a confrontation similar to the one at Malheur threatened BLM

employees in southern Arizona, although no violence occurred.

The recent rise

of social media, and its ability to marshal numerous anti-government protestors

in short order, may account for the significant increase in the level of resistance

2. Dwight and Steven Hammond set fire to federal lands in 2001 and 2006, allegedly to ward off

invasive plant species and protect their property from wildfire (although perhaps also to cover for an

illegal deer hunt), a crime punishable by a minimum five-year sentence in jail under federal law. See

Alexandra Zavis et al., How Oregon Ranchers Unwittingly Sparked an Armed Standoff, L.A. TIMES

(Jan. 5, 2016, 3:00 AM), http://www.latimes.com/nation/la-na-ff-hammond-oregon-20160105-

story.html. After the Hammonds refused to plea-bargain with the U.S. Attorney, the case went to trial—

at which the Hammonds were convicted. At sentencing however, U.S. District Judge Michael Hogan

decided that a five-year sentence would constitute unconstitutional cruel and unusual punishment.

Consequently, he sentenced Dwight to just three months in jail and Steven to a year. See id. The

government appealed the sentences, and the Ninth Circuit reversed on the grounds the sentences did not

violate the Eighth Amendment, and the district court lacked discretion to alter mandatory minimum

sentences imposed by Congress. See id. This decision effectively sent the Hammonds to federal prison

for five years each. See id.

3. See Les Zaitz, Militia takes over Malheur National Wildlife Refuge headquarters, THE

OREGONIAN (Jan. 2, 2016, 6:15 PM, updated Feb. 22, 2016, 1:29 PM), http://www.oregonlive.com/

pacific-northwest-news/index.ssf/2016/01/drama_in_burns_ends_with_quiet.html.

4. See Press Release, FED. BUREAU OF INVESTIGATION, FBI Arrests All Remaining Occupiers at

the Malheur National Wildlife Refuge (Feb. 11, 2016), https://www.fbi.gov/portland/press-

releases/2016/fbi-arrests-all-remaining-occupiers-at-the-malheur-national-wildlife-refuge.

5. See Janell Ross, The Bundys Want Federal Land ‘Returned’ to Them. But it was Never

‘Theirs’ in the First Place, WASH. POST: THE FIX (Jan. 6, 2016), https://www.washingtonpost.com/

news/the-fix/wp/2016/01/06/the-bundys-want-federal-land-returned-to-them-but-it-was-never-theirs-in-

the-first-place/.

6. Les Zaitz, Nevada Rancher Cliven Bundy Arrested by FBI in Portland, THE OREGONIAN (Feb

23, 2016, 1:07 PM), http://www.oregonlive.com/oregon-standoff/2016/02/nevada_rancher_cliven_

bundy_de.html. Cliven Bundy was finally arrested in Portland earlier this year when planning to join his

sons at the Malheur refuge. Id. He faces weapons charges and a charge of conspiracy to interfere with a

federal officer. Id.

7. See Rob Davis, Months before Malheur Occupation, another Oregon Land Dispute

Galvanized Militants, THE OREGONIAN (Feb. 22, 2016, 2:35 PM), http://www.oregonlive.com/oregon-

standoff/2016/01/months_before_malheur_occupati.html.

8. See Tim Steller, Nevada Rancher Case has Links to, Parallels in Southern Arizona, ARIZ.

DAILY STAR (Apr. 18, 2014), http://tucson.com/news/local/column/steller-nevada-rancher-case-has-

links-to-parallels-in-southern/article_57029e8f-0bec-5a81-b638-82988fb1e8ea.html.

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784 ECOLOGY LAW QUARTERLY [Vol.43:781

a decade later.

All of these confrontations involved public-land users claiming

that the federal government lacked authority to own and manage federal

lands.

Some westerners have used state legislation to resist federal land

ownership. For example, in 2012 the state of Utah enacted the Transfer of

Public Lands Act (TPLA), which demanded that the federal government

transfer ownership of most federal land in the state to Utah.

The state also

threatened to file suit, claiming that the federal government violated its

promises in the Utah Statehood Act to dispose of federal land.

In 2015

Wyoming passed a statute amending its trespass law to forbid collecting

environmental data on private property, aimed at preventing the collection of

data relevant to water quality problems caused by public-lands cattle grazing.

And several members of Congress from western states like Utah, Colorado,

Idaho, and Wyoming introduced bills in 2016 that would require divesture of

federal lands by one means or another.

The Republican Party platform in

2016 even contained a promise to convey federal lands to the states.

9. See Lindsey Bever, How the Bundys’ Social Media Machine Fed their Political Movement,

WASH. POST: MORNING MIX (Jan. 27, 2016), https://www.washingtonpost.com/news/morning-

mix/wp/2016/01/27/how-the-bundys-social-media-machine-fed-their-political-movement/.

10. See Ross, supra note 5 (regarding Bundy’s claim in Oregon); Jaime Fuller, The Long Fight

Between the Bundys and the Federal Government, from 1989 to Today, WASH. POST: THE FIX (Jan. 4,

2016), https://www.washingtonpost.com/news/the-fix/wp/2014/04/15/everything-you-need-to-know-

about-the-long-fight-between-cliven-bundy-and-the-federal-government/ (addressing Bundy’s claim in

Nevada); Davis, supra note 7 (discussing the Galice standoff); Steller, supra note 8 (concerning the

southern Arizona controversy).

11. H.B. 148, 2012 Gen. Sess. (Utah) (codified at UTAH CODE ANN. §§ 63L-6-101104 (West

2014)). Professors Robert Keiter and John Ruple have analyzed the constitutionality of the statute.

Robert B. Keiter & John C. Ruple, Wallace Stegner Ctr. for Land, Resources & the Env’t, A Legal

Analysis of the Transfer of Public Lands Movement 1 (Stegner Center White Paper No. 2014-2, 2014),

http://www.law.indiana.edu/publicland/files/legal_analysis_utah_land_transfer.pdf (concluding that

Utah’s claims will fail because the federal government has plenary control over federal public lands).

12. Utah lawmakers passed legislation establishing a dedicated funding stream for an expected

$14 million lawsuit. See Phil Taylor, Utah Prepares War Chest for Takeover Lawsuit, GREENWIRE

(Mar. 11, 2016), http://www.eenews.net/stories/1060033874. Utah may base its decision to sue on the

political leanings of the appointee who fills the Supreme Court vacancy left by the late Justice Scalia.

See Michelle L. Price, Lawmaker: Utah Might Not Sue for Federal Lands until 2017, WASH. TIMES

(June 15, 2016), http://www.washingtontimes.com/news/2016/jun/15/lawmaker-utah-may-not-sue-for-

federal-lands-until-/. Transferring management of public lands to states would increase management

costs dramatically. See ROBERT B. KEITER & JOHN C. RUPLE, WALLACE STEGNER CTR. FOR LAND,

RESOURCES & THE ENV’T, THE TRANSFER OF PUBLIC LANDS MOVEMENT: TAKING THE ‘PUBLIC’ OUT

OF PUBLIC LANDS 1 (Jan. 28, 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2555922.

13. WYO. STAT. § 40-27-101 (2015) (the statute prohibits people from using private lands

adjacent to public lands to sample water quality, a technique used to draw conclusions as to the negative

impact of public land grazing on water quality). See Justin Pidot, Forbidden Data: Wyoming Just

Criminalized Citizen Science, SLATE (May 11, 2015, 10:04 AM), http://www.slate.com/articles/

health_and_science/science/2015/05/wyoming_law_against_data_collection_protecting_ranchers_by_ig

noring_the.html.

14. E.g., State National Forest Management Act of 2015, H.R. 3650, 114th Cong. (2015); Self-

Sufficient Community Lands Act, H.R. 2316, 114th Cong. (2015); Mount Hood Cooper Spur Land

Exchange Clarification Act, H.R. 3826, 114th Cong. (2016). See Abby Kessler, Land Management Bills

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2016] THE PROPERTY CLAUSE AND ITS DISCONTENTS 785

Efforts to seize control over federal lands have existed at least since the

so-called “Sagebrush Rebellion” of the 1970s

—a response to federal efforts

to reform federal-land management to be more sensitive to wildlife and

watershed protection.

But when a self-proclaimed sagebrush rebel, Ronald

Reagan, became president, the rebellion subsided.

A decade-and-a-half later,

the Clinton Administration, under the leadership of Interior Secretary Bruce

Babbitt (a rancher), proposed to reform rangeland regulations, prompting a so-

called “County Supremacy Movement.”

Although that movement bore no

legal fruit,

it produced numerous unenforceable county ordinances that to this

day proclaim that federal-land ownership within their borders is illegal.

Attempts to divest federal ownership of public lands have failed because

for the last 175 years the Supreme Court has consistently affirmed Congress’s

broad authority

under the Constitution’s Property Clause to establish federal-

Spark Heated Debate, ENV’T & ENERGY DAILY (Feb. 26, 2016), http://www.eenews.net/eedaily/

stories/1060033039/search?keyword=Public+lands+bills.

15. See Jodi Peterson, This Year’s GOP Platform Pushes Federal Land Transfers, HIGH

COUNTRY NEWS (July 14, 2016), https://www.hcn.org/articles/2016-gop-platform-pushes-federal-land-

transfers; Scott Streater, Salazar, Hickenlooper Rip ‘Reckless’ GOP Transfer Platform, E&E NEWS PM

(July 19, 2016), http://www.eenews.net/eenewspm/2016/07/19/stories/1060040509; see also infra text

accompanying note 313.

16. See GEORGE C. COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 72–77 (7th

ed. 2014).

17. See Forty Years of Sagebrush Rebellion, HIGH COUNTRY NEWS (Jan. 4, 2016),

http://www.hcn.org/articles/sagebrush-rebellion. The Hoover Administration offered to convey to

western states the unreserved public lands but withhold the mineral estate, which the states refused. See

George C. Coggins & Doris K. Nagel, “Nothing Beside Remains: The Legal Legacy of James G. Watt’s

Tenure as a Secretary of the Interior on Federal Land and Law Policy, 17 B.C. ENVT’L AFF. L. REV.

473, 492–93 (1990).

18. See COGGINS ET AL., supra note 16, at 73.

19. See Gary Andrew Poole, Hold It! This Land Is My Land!: Led by Commissioner Dick Carver,

Nevada’s Nye County Is Now Ground Zero in the West’s War Against the U.S. Government, L. A. TIMES

(Dec. 3, 1995), http://articles.latimes.com/1995-12-03/magazine/tm-9835_1_nye-county/6.

20. See, e.g., Gardner v. Stager, 103 F.3d 886 (9th Cir. 1996) (barring an action to quiet title to

federal lands and water rights under a Nevada state statute on grounds of federal sovereign immunity);

Colvin Cattle Co. v. United States, 468 F.3d 803 (Fed. Cir. 2006) (rejecting an argument that a state

water right included an attendant right to graze on public land; thus, cancellation of a federal grazing

lease was not taking of water rights); United States v. Estate of Hage, 810 F.3d 712 (9th Cir. 2016)

(rejecting the argument that a rancher had an easement by necessity to cross federal lands due to his

water rights for his cattle to access water sources on federal land).

21. See, e.g., NEV. REV. STAT. § 321.596–321.599 (2015) (declaring that the state owned and had

control over all “public lands” within it); Baker County, Or., Natural Resources Plan (July 20, 2016);

Grant County, Or., Public Lands Natural Resources Plan (Sept. 30, 2015); Elizabeth M. Osenbaugh &

Nancy K. Stoner, The County Supremacy Movement, 28 URB. LAW. 497, 500–01 (1996); Tay Wiles,

Land Transfer Battles Rage On, County by County, HIGH COUNTRY NEWS (July 15, 2016),

https://www.hcn.org/issues/48.12/battles-over-whether-to-support-the-american-lands-council-rage-on-

county-by-county. The American Legislative Exchange Council (ALEC) helps draft such ordinances

and circulates them online. KARLA JONES, AM. LEGIS. EXCHANGE COUNCIL, FEDERALLY MANAGED

LANDS IN THE WEST: THE ECONOMIC AND ENVIRONMENTAL IMPLICATIONS FOR THE STATES 15–16

(Sept. 2, 2015), https://www.alec.org/publication/2015federallands/.

22. See infra Part II.C.

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land policy and to manage public lands.

This long precedent suggests that no

legal basis exists upon which courts may order such a divestiture,

despite the

misleading legal advice influencing some of the militants.

Political efforts for divesture, however, present other issues, given the

broad power Congress possesses under the Property Clause. Congress may

have the authority to convey public lands to the states or privatize them.

short, the divestiture of public lands from the federal government is mostly a

political issue, not a legal one.

This Article examines contemporary controversies over federal public

lands, which have now entered a new era—perhaps due to social networking

that encourages armed confrontations—producing considerable threats to both

public employees

and local communities.

Part I of the Article discusses the

current controversies and their antecedents. Part II explains the Property Clause

23. See infra Part II.B.

24. One law firm in New Orleans, commissioned by the state of Utah, seems to think otherwise.

See George R. Wentz et. al., DAVILLIER LAW GROUP, LLC, LEGAL ANALYSIS OF THE LEGAL

CONSULTING SERVICES TEAM PREPARED FOR THE UTAH COMMISSION FOR THE STEWARDSHIP OF

PUBLIC LANDS 1–5, 145 (Dec. 9, 2015), http://le.utah.gov/interim/2015/pdf/00005590.pdf (suggesting

that under the so-called “equal sovereignty” and “equal footing” doctrines the state may have a case if it

were to expend some $14 million in legal fees). See supra notes 2–9 and accompanying text.

25. The Malheur militants were apparently inspired by KrisAnne Hall, a self-proclaimed

constitutional lawyer and Tea Party activist. See KrisAnne Hall, What’s Really Going on in Oregon!

Taking Back the Narrative!, YOUTUBE (Jan. 5, 2016), https://www.youtube.com/watch?v=

T424sWq1SkE; see also infra note 248 and accompanying text. Hall has maintained that the federal

government’s only authority to own land is ten square-miles from Washington D.C. Id. She has rejected

the authority of the Supreme Court to judge the constitutionality of laws, maintaining that the seminal

case on which the Supreme Court’s judicial power is based, Marbury v. Madison, 5 U.S. 137 (1803), is

just an example of the Supreme Court usurping this power. Id. Her argument that the government’s

authority is limited to 10 square-miles in the District of Columbia is inaccurate even under the Enclave

Clause, the scope of which is much broader. See Peter A. Appel, The Power of Congress “Without

Limitation”: The Property Clause and Federal Regulation of Private Property, 86 MINN. L. REV. 1, 10–

15 (2001); Marla E. Mansfield, A Primer of Public Land Law, 68 WASH. L. REV. 801, 804 (1993).

26. The public trust doctrine may provide some limits on the congressional authority to alienate

federal public lands. See, e.g., Michael C. Blumm & Lynn S. Schaffer, The Federal Public Trust

Doctrine: Misinterpreting Justice Kennedy and Illinois Central Railroad, 45 ENVTL. L. 399 (2015).

27. Public Employees for Environmental Responsibility (PEER) tries to protect such employees

by asking agencies to “confront the message, rather than the messenger.” PUB. EMPS. FOR ENVTL. RESP.,

http://www.peer.org/ (last visited Nov. 15, 2016).

28. In Malheur County, in the wake of the occupation, the local judge (the equivalent of a county

commissioner) who opposed the Bundy militants survived a recall election with over 70 percent of the

vote. See Andrew Selsky, Oregon County Keeps Judge Who Blocked Refuge Occupiers, WASH. TIMES

(June 28, 2016), http://www.washingtontimes.com/news/2016/jun/28/oregon-recall-election-linked-to-

armed-takeover/. During the occupation, Oregonians started a petition to collect monetary pledges in

order to fund the “most appropriate groups to combat the ignorance and hate of the Malheur NWR

occupiers.” By the end of the occupation, the movement, “Go Home Malheur” or #gohomemalheur had

raised more than $135,000. GOHOMEMALHEUR, http://www.gohomemalheur.org/mission/ (last visited

Nov. 15, 2016). The local Burns Paiute Tribe also voiced strong concerns against the occupation,

arguing that “[c]ondoning the illegal occupation of a federal facility by armed lawbreakers only

encourages others to believe they can behave in the same way, with impunity.” Luke Hammill, Burns

Paiute Tribe to Feds: Stop Allowing Bundy Free Passage, THE OREGONIAN (Feb. 22, 2016, 2:51 PM),

http://www.oregonlive.com/oregon-standoff/2016/01/burns_paiute_tribe_to_the_feds.html.

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2016] THE PROPERTY CLAUSE AND ITS DISCONTENTS 787

of the Constitution and its consistent judicial interpretation over the centuries,

retracing well-trod legal ground. Part III examines the protestors’ legal claims

against federal ownership of public lands. The claims of these “discontents”

have no plausible credence in light of the long judicial history of consistent

Property Clause interpretation. Part IV explores the political prospects of the

federal-land divestiture movement in Congress, which, given the law explained

in Part II, is where any resolution must occur. The Article concludes that

divestiture threatens to radically alter public-land law and its long history of

preventing land and resource monopolies.

Given that federal lands have

always been central to American identity, and that divestiture threatens to

engender great opposition and contentious litigation,

Congress and the

President should proceed with caution.

I. BACKGROUND

The incident involving Ammon Bundy and his colleagues at Malheur

Refuge in southeastern Oregon was hardly the first armed protest against

public-land ownership. Just in the twenty-first century, such conflicts occurred

at least five times, in Arizona, Nevada, Utah, and twice in Oregon. In this Part,

we examine some of the most notable confrontations.

A. The Arizona Standoff

In 2002 in southeastern Arizona, the Klump family caused a conflict with

BLM quite similar to the Bundy standoffs. The Klumps claimed ownership of

public lands southeast of the Dos Cabezas Mountains.

After ten years of

conflict, the federal district court in Tucson ordered Wally Klump to remove

his cattle from the Badger Den and Simmons Peak Allotments.

When Klump

refused to recognize BLM’s jurisdiction over his cattle on public lands, federal

officials jailed him until he removed his cows a year later, marking the end of

the dispute.

The Klump incident resulted from the militants’ misunderstanding of the

Constitution and, like the Bundy affairs, intimidated public servants. Klump

threatened a lethal response to efforts by BLM to remove the cattle, claiming

Second Amendment protection.

On the other hand, the Klump situation

29. See generally Michael C. Blumm & Kara Tebeau, Antimonopoly in American Public Land

Law, 28 GEO. ENVTL. L. REV. 155 (2016).

30. See Blumm & Schaffer, supra note 26, at 421–30 (discussing possible limits to wholesale

congressional divestiture).

31. See Phil Taylor, Meet the Klumps – BLM’s pre-Bundy Roundup Nightmare, GREENWIRE

(Mar. 4, 2016), http://www.eenews.net/stories/1060033470.

32. Id.

33. See Steller, supra note 8.

34. See Taylor, supra note 31. Klump warned BLM, “You take those cows, I’ll kill you as

mandated by the Second Amendment.” Id.

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788 ECOLOGY LAW QUARTERLY [Vol.43:781

differed from the Bundy conflicts because after being jailed, Klump stopped

trespassing.

B. The Bundy Nevada Standoff

Although the Bundy standoff in Nevada captured widespread media

attention in 2014, its origins date from two decades earlier. Cliven Bundy had

stopped paying his grazing fees in the early 1990s, claiming that the federal

government lacked authority over lands that his ancestors settled in the

1880s.

BLM filed suit against Bundy, and a federal district court ruled in

favor of BLM in 1998.

Over the years, BLM tried to settle Bundy’s unpaid

grazing fees, which eventually amounted to over $1.2 million, but its efforts

were unsuccessful.

The conflict intensified in 2014 when footage of a BLM agent using a stun

gun on Bundy’s son went viral on the Internet, and hundreds of armed militants

came to Bundy’s ranch to help defend him from the court order.

The standoff

culminated in April 2014, when Bundy led his followers to retake the cattle that

BLM had confiscated, resulting in more than four hundred armed followers

confronting about fifty government agents.

Faced with a threat of armed

conflict, BLM backed down and returned some of the cattle, while proceeding

with administrative and judicial actions against Bundy.

Later, Bundy offered two defenses in court. First, he alleged that the land

in question belonged to either Nevada or the local county.

Second, he argued

that his ancestral use right preempted BLM’s jurisdiction over federal land,

denying the sovereignty of the federal government.

He even claimed that the

Supreme Court had no authority to interpret law, and that the decisions of the

35. Compare Taylor, supra note 31, with Matt Ford, The Irony of Cliven Bundy’s

Unconstitutional Stand, THE ATLANTIC (Apr. 14, 2014), http://www.theatlantic.com/politics/archive/

2014/04/the-irony-of-cliven-bundys-unconstitutional-stand/360587/ (Klump did not acknowledge

Arizona state laws, whereas Bundy claimed to act consistent with Nevada law).

36. Matt Ford, The Irony of Cliven Bundy’s Unconstitutional Stand, THE ATLANTIC (Apr. 14,

2014), http://www.theatlantic.com/politics/archive/2014/04/the-irony-of-cliven-bundys-unconstitutional-

stand/360587/.

37. United States v. Bundy, No. CV-S-98-531-JBR (RJJ), 1998 U.S. Dist. LEXIS 23835, at *19

(D. Nev. Nov. 4, 1998).

38. See Ford, supra note 36.

39. See id.

40. See Julie Turkewitz, Cliven Bundy and Sons Charged in Case That Gave Rise to Oregon

Standoff, N.Y. TIMES (Feb. 18, 2016), http://www.nytimes.com/2016/02/19/us/charges-for-5-in-nevada-

are-linked-to-oregon-case.html; see Ford, supra note 36 (one of the anti-government militants told

Reuters “I’m ready to pull the trigger if fired upon . . . .”).

41. Jim Urquhart, U.S. Officials End Stand-Off with Nevada Rancher Cliven Bundy, NEWSWEEK

(Apr. 12, 2014, 10:50 PM), http://www.newsweek.com/us-officials-end-stand-nevada-rancher-cliven-

bundy-246038.

42. United States v. Bundy, No. CV-S-98-531-JBR (RJJ), 1998 U.S. Dist. LEXIS 23835, at *4,

12–13 (D. Nev. Nov. 4, 1998).

43. Id.; Bundy did pledge allegiance to state laws. See Ford, supra note 36 (“I abide by all of

Nevada state laws. But I don’t recognize the United States government as even existing.”).

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2016] THE PROPERTY CLAUSE AND ITS DISCONTENTS 789

Court could not bind any state.

Consequently, he flatly rejected all of the

Property Clause’s jurisprudence concerning federal authority over public

lands.

Although Cliven Bundy’s argument failed in court, many ranchers

celebrated his “[teaching] the federal government a lesson” and getting BLM to

back down.

That “victory,” however, came at a price, as more militants

involved in the armed standoff have since faced indictment and jail time.

Bundy’s legal prospects are dim

—even the Nevada Constitution, which

expressly recognizes the supremacy of the federal government and of the

Supreme Court,

conflicts with his argument. But Bundy has enjoyed some

political momentum, including the backing of several Republican politicians.

While Cliven Bundy remained in Nevada, his son, Ammon, became the leading

figure in the Malheur Refuge occupation.

C. The Utah Transfer of Public Lands Act

In 2012 state representative Ken Ivory of Utah sponsored a bill to transfer

public lands to the state.

The TPLA demanded that the United States

government gift the state over 30 million acres of public lands by December 31,

2014.

The TPLA resulted from growing state frustration over federal land

ownership and management in Utah, where the federal government owns

44. Bundy claimed that the Constitution did not authorize the Supreme Court to exercise judicial

review, echoing the argument of Hall, supra note 25, against the legitimacy of the foundational case

Marbury v. Madison, 5 U.S. 137 (1805), and asserting that the Court exceeded its constitutional

authority in that decision.

45. See infra Part II.

46. See Adam Nagourney, A Defiant Rancher Savors the Audience That Rallied to His Side, N.Y.

TIMES (Apr. 23, 2014), http://www.nytimes.com/2014/04/24/us/politics/rancher-proudly-breaks-the-

law-becoming-a-hero-in-the-west.html?_r=1.

47. See Phil Taylor, Trump Ally Arrested; 14 More Indicted for Bundy’s Nev. Siege, E&ENEWS

(Mar. 3, 2016, 6:00 PM), http://www.eenews.net/stories/1060033433.

48. See infra Part II.B.; see also Conrad Wilson, Judge Denies Release for Bundy Brothers Again,

OPB NEWS (July 19, 2016, 5:04 PM), http://www.opb.org/news/series/burns-oregon-standoff-bundy-

militia-news-updates/ammon-ryan-bundy-denied-release-again/.

49. See NEV. CONST. art. I, § 2 (“[T]he Paramount Allegiance of every citizen is due to the

Federal Government in the exercise of all its Constitutional powers as the same have been or may be

defined by the Supreme Court of the United States”).

50. Sen. Rand Paul (R-Ky.) voiced support for the Bundys, as did Sen. Dean Heller (R-Nev.),

who called Cliven Bundy’s supporters “patriots.” See Nagourney, supra note 46. Former presidential

candidate Sen. Ted Cruz (R-Tex.) made clear his intention to give away or sell public lands to the states.

See Ralph Maughan, Cruz Tries to Win the West by Taking our Public Lands, WILDLIFE NEWS (Apr. 9,

2015), http://www.thewildlifenews.com/2015/04/09/cruz-tries-to-win-the-west-by-taking-our-public-

lands/. There are groups in many western states, including New Mexico, Colorado, Idaho, and Utah,

calling for the transfer of public lands to the states. See Paul Tolmé, Keeping Public Lands Public,

NAT’L WILDLIFE FED’N (Jan. 29, 2016), https://www.nwf.org/News-and-Magazines/National-Wildlife/

Animals/Archives/2016/Keeping-Public-Lands-Public.aspx.

51. Transfer of Public Lands Act and Related Study, H.B. 148, 2012 Gen. Sess. (Utah) (codified

at UTAH CODE ANN. §§ 63L-6-101–104 (West 2014)). The 2016 Republican Platform endorsed

conveying federal lands to the states. See supra note 15 and accompanying text.

52. See UTAH CODE ANN. § 63L-6-103(1) (West 2014); Keiter & Ruple, supra note 11, at 1.

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790 ECOLOGY LAW QUARTERLY [Vol.43:781

roughly 65 percent of the land surface.

Utah became the first state to pass a

law demanding the federal government hand over lands to the state.

The

Act’s deadline for the transfer expired at the end of 2014 without inducing

federal action, so state Republicans are now pressing to sue the federal

government to claim the federal acres. The state seeks to secure the lands for

mineral development and timber production.

Although the TPLA conflicts with congressional authority under the

Property Clause to manage public lands,

supporters of the Act make three

arguments in support of its constitutionality.

First, they allege that the text of

the Utah Enabling Act demonstrates that both the federal government and the

state intended the Act to commit Congress to dispose of public lands in Utah.

Second, they argue that the history of management of western lands shows

federal intent to eventually cede all lands to the states.

Third, they claim that

53. See Keiter & Ruple, supra note 11, at 1.

54. Jack Healy & Kirk Johnson, The Larger, but Quieter than Bundy, Push to Take Over Federal

Land, N.Y. TIMES (Jan. 10, 2016), http://www.nytimes.com/2016/01/11/us/the-larger-but-quieter-than-

bundy-push-to-take-over-federal-land.html. ALEC, supra note 21, helped transfer advocates in drafting

similar bills in Alaska, Arizona, Colorado, Montana, New Mexico, Washington, and Wyoming, but no

bill has been enacted. See Rachael Bale, The Problems with the State Movement to Take Federal Land,

CTR. FOR INVESTIGATIVE REPORTING: REVEAL (Mar. 11, 2015), https://www.revealnews.org/article/the-

problems-with-the-state-movement-to-take-federal-land/.

55. See Healy & Johnson, supra note 54.

56. See Nick Lawton, Utah’s Transfer of Public Lands Act: Demanding a Gift of Federal Lands,

16 VT. J. ENVTL. L. 1, 17 (2014). In cases of conflict between state and federal law, the federal law

prevails under the Supremacy Clause. U.S. Const. art. VI, § 2.

57. See Lawton, supra note 56, at 18–21.

58. See id. at 19. Section III of the Utah Enabling Act provides that the people of Utah

[A]gree that they forever disclaim all right and title to the unappropriated public lands lying

within the boundaries thereof; and to all lands lying within said limits owned or held by any

Indian or Indian tribes; and that until the title thereto shall have been extinguished by the

United States, the same shall be and remain subject to the disposition of the United States.

Utah Enabling Act, §3, 28 Stat. 107 (1894). Proponents of transfer argue that the so called “disclaimer”

requires the United States to extinguish title to public lands, which the United States has failed to do. See

Lawton, supra note 56, at 18. Professors Keiter and Ruple explain why the argument is flawed,

however. See Keiter & Ruple, supra note 11, at 5 (“‘[S]hall’ in an enabling act indicates that at some

future date, the federal government may sell public lands. If [it] does sell more land, five-percent of the

proceeds would go to the state, but the Utah Enabling Act does not obligate the federal government to

dispose of federal lands. Moreover, even if shall is interpreted as a term of obligation, at the turn of the

century, ‘shall’ meant ‘[m]ay, when used against a government.’”).

59. See, e.g., Donald J. Kochan, A Legal Overview of Utah’s H.B. 148—The Transfer of Public

Lands Act 14–18, THE FEDERALIST SOC’Y (Jan. 2013), http://www.fed-soc.org/publications/detail/a-

legal-overviewof-utahs-hb-148 (“It can not [sic] be supposed the compacts intended that the United

States should retain forever a title to lands within the States which are of no value, and no doubt is

entertained that the general interest would be best promoted by surrendering such lands to the States.”

(quoting President Andrew Jackson, Veto Message of December 4, 1833, reprinted in 3 Messages and

Papers of the Presidents, 1789-1897, at 56-69, http://www.presidency.ucsb.edu/ws/index.php?

pid=67041)). Professor Kochan’s report claimed that there were “serious legal questions” raised by

Utah’s demand that the federal government gift it some 20 million acres of federal public land, Kochan,

supra, at 5. However, there are serious flaws in several of his arguments: (1) he claimed that it would be

“impracticable” to believe that the state would disclaim any interference with federal land management

without a corresponding obligation to dispose of federal lands, id. at 13, but the federal government did

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2016] THE PROPERTY CLAUSE AND ITS DISCONTENTS 791

the Supreme Court’s 1845 decision in Pollard v. Hagan

means that the

federal government may own land only for the benefit of new states, rejecting

the Supreme Court’s contrary interpretations of the Property Clause.

However, the Utah Enabling Act’s express requirement that the state “forever

disclaim all right and title to the unappropriated public lands”

within its

territory, represents the most persuasive evidence of the appropriate federal and

state roles in future land management. Moreover, the Supreme Court clearly

confined its holding in Pollard to submerged lands beneath navigable waters.

Utah’s claims are consequently unlikely to succeed.

Utah’s efforts to obtain title to public lands constitute just one example of

multiple bills introduced in western states for similar claims. Most of the other

efforts rely on political, not legal arguments,

as these efforts represent a

broader attempt to gather support to lobby Congress to gift federal lands to the

states. This approach has a better chance of success than any legal claim.

in fact dispose of over seven million acres of land to the state in its Statehood Act and many more to

private parties over the years, and the chief consideration for the state to join the Union was political

equal footing, not proprietary benefits; (2) he mistakenly referred to the federal government as acquiring

land through statehood, id. at 14, when it actually obtained the lands through the Treaty of Guadalupe

Hidalgo of 1848 with Mexico, Treaty of Guadalupe Hidalgo, Mex.-U.S., Feb. 2 1848, 9 Stat. 922; (3) he

alleged that if the federal government failed to sell its land, the state would not receive its “anticipated

percentage” of 5 percent, Kochan, supra, at 15, but a failure to sell would not affect the disposition of

revenues from the lands that were not sold; and (4) he maintained that failure to dispose conflicted with

an “ethic” or “expectation” of disposal, id. at 16, but there’s no language in the Statehood Act that could

be interpreted as creating any vested rights in a particular number of acres the federal government must

dispose.

60. 44 U.S. 212 (1845) (holding that statehood implicitly transferred tidelands in navigable

Mobile Bay to the state).

61. See Lawton, supra note 56, at 20–21.

62. Utah Enabling Act §3, 28 Stat. 107 (1894).

63. Pollard, 44 U.S. at 230; United States v. California, 332 U.S. 19, 36 (1947) (refusing to apply

the Pollard reasoning to lands submerged beneath ocean waters); Arizona v. California, 373 U.S. 546,

597–98 (1963) (rejecting state arguments to apply Pollard to federal public lands not submerged beneath

navigable waters at statehood). See infra notes 275–277 and accompanying text.

64. See Keiter & Ruple, supra note 11, at 6 (“The federal government has absolute control over

federal public lands, including the constitutional authority to retain lands in federal ownership.”). Rep.

Bishop will not let his big bargain go down easily, however, as an updated bill he introduced in July

2016 demonstrated. See Thomas Burr & Matt Canham, Bishop, Chaffetz Unveil Long-Awaited Lands

Bill in Bid to Block a Bears Ears National Monument, SALT LAKE TRIB. (July 16, 2016, 5:47 PM),

http://www.sltrib.com/home/4116187-155/bishop-chaffetz-unveil-long-awaited-lands-bill.

65. See the congressional and political support mentioned supra notes 50-51.

66. See Part IV. After this Article was in press, the Associated Press obtained through the

Freedom of Information Act a report of the Western Attorneys General, which agreed that (1) the

Property Clause gives the federal government plenary authority to dispose of or reserve public lands at

its discretion; (2) the Enclave Clause does not limit the scope of the Property Clause; and (3) neither the

equal footing nor equal sovereignty arguments, proffered by the New Orleans law firm for the state of

Utah, supra note 24, required federal disposition of public lands. W. ATT’YS GEN. LITIG. ACTION

COMMITTEE, CONFERENCE OF WESTERN ATTORNEYS GENERAL, REPORT OF THE PUBLIC LANDS

SUBCOMMITTEE (2016), https://wilderness.org/sites/default/files/CWAG%20Public%20Lands%20

Subcommittee%20Report.pdf [hereinafter ATTORNEY GENERAL’S REPORT]. The report was approved

on an 11-1 vote on July 19, 2016. Id. at i. See Scott Streater, States Lack Standing to Seize Federal

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792 ECOLOGY LAW QUARTERLY [Vol.43:781

D. The Galice Mining Standoff–Rogue River

The Malheur Refuge occupation was not the first armed resistance to

federal land management in Oregon. A similar standoff began in April 2015

when two gold miners in the Galice mining district received a non-compliance

letter from BLM disputing their mining rights to the Sugar Pine Mine in

southwestern Oregon.

To defend his alleged mining right, Rick Barclay asked

the Oath Keepers of Josephine County for help, prompting numerous armed

protesters to arrive and watch over the claim for six weeks.

Although BLM closed its office for a day because of threatening phone

calls, the Galice standoff appeared more peaceable than the Malheur Refuge

occupation.

The armed conflict ended when the Interior Board of Land

Appeals agreed to hear the miners’ administrative appeal, which remains

ongoing as of this writing.

The miners challenged BLM’s authority to

manage surface rights, contending that the claims dated back to the 1870s, long

before the 1955 Surface Resources Act directed federal land managers to

protect surface resources affected by mining.

BLM maintained that it

possessed surface rights authorizing the agency to regulate the mining claims.

Unlike Bundy’s meritless ownership claim at the Malheur Refuge occupation,

the Galice miners may have a credible legal argument concerning BLM’s

jurisdiction over their mining claims.

Acres—AGs, GREENWIRE (Oct. 3, 2016), http://www.eenews.net/greenwire/stories/1060043768 (citing

and linking to the attorneys general’s report).

67. See Davis, supra note 7 (explaining that a federal employee surveying the land for abandoned

mines found impermissible equipment on site near Galice because the miners had no surface rights; the

employee told Rick Barclay and George Backes that they needed to obtain federal approval before

mining).

68. See id.

69. The Josephine County Sheriff compared the two incidents in the following terms: “[w]hat you

had in Sugar Pine was a peaceful, fairly well-organized event” . . . [w]hat you have over there [at

Malheur Refuge] is truly an armed occupation where laws are being broken.” Id.

70. The Interior Board of Land Appeals ordered BLM not to enforce its order to stop mining, and

the miners promised to stop mining during the administrative appeal process. Barclay proceeded to file

suit in federal court in October 2015 to restore his rights to mine, and oral arguments were heard in

February 2016. See Mark Freeman, Miners Defiant as Dredging Moratorium Begins, WASH. TIMES

(Jan. 15, 2016), http://www.washingtontimes.com/news/2016/jan/15/miners-defiant-as-dredging-

moratorium-begins/?page=all.

71. See Travis Gettys, Militia Groups Flock to Oregon for Bundy-Style Standoff with

‘Government Jackboots’ over Gold Mining Claims, RAW STORY (Apr. 14, 2015, 12:28 PM),

http://www.rawstory.com/2015/04/militia-groups-flock-to-oregon-for-bundy-style-standoff-with-

government-jackboots-over-gold-mining-claim/.

72. See Judge Bars BLM Enforcement in Oregon Gold Mine Dispute, THE OREGONIAN (May 20,

2015, 4:45 PM), http://www.oregonlive.com/environment/index.ssf/2015/05/judge_bars_blm_

enforcement_in.html.

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E. The Malheur Refuge Occupation

The Malheur Refuge occupation lasted six weeks and resulted in the arrest

of at least twenty-five militants.

The leading figure of the occupation,

Ammon Bundy was not an Oregon landowner, but he seized the opportunity

provided by the Ninth Circuit’s decision on the Hammonds’ sentences

advocate the Bundian interpretation of the Constitution and its public-land

ramifications. Ironically, BLM and the local community had collaborated well

over the years and had reached agreement in 2013 on a refuge management

plan affecting grazing and wildlife and watershed protection.

Although the

local population had expressed mixed feelings about the presence of the Bundy

militants,

Bundy used the occupation to repeatedly declare federal land

ownership unconstitutional, and BLM powerless to manage federal lands.

73. See Conrad Wilson, Judge: Malheur Occupation Trial Could Take More Than a Month, OPB

NEWS, Mar. 9 2016, 10:19 PM), http://www.opb.org/news/series/burns-oregon-standoff-bundy-militia-

news-updates/judge-malheur-trial-could-take-more-than-a-month/. Ammon and Ryan Bundy argued in

their federal court trial in Portland, Oregon, that the federal government lost the power to regulate public

lands after Oregon achieved statehood. See Nevada Trial for Cliven Bundy, 18 Others Set for 2017, THE

OREGONIAN (Apr. 27, 2016, 2:36 PM), http://www.oregonlive.com/pacific-northwest-news/index.ssf/

2016/04/nevada_trial_for_cliven_bundy.html. The Bundys maintained that their actions at the refuge

aimed to establish an adverse possession claim over the Refuge, and that free speech protected their

conduct. See Maxine Bernstein, Bundy Brothers’ Motion for Pretrial Release Previews their Defense in

Oregon Standoff Case, THE OREGONIAN, (July 18, 2016, 5:06 AM), http://www.oregonlive.com/

portland/index.ssf/2016/07/ammon_bundys_motion_for_pretri.html#incart_river_home. The number of

defendants who went to trial in September 2016 was just seven, as many of the original defendants

pleaded guilty, and others will face later proceedings. See Maxine Bernstein, Trial for Ammon Bundy, 6

Others in Oregon Standoff Set to Begin, THE OREGONIAN (Sept. 8, 2016, 9:30 AM), http://www.oregon

live.com/oregon-standoff/2016/09/oregon_standoff_trial_for_ammo.html. In a surprising decision, given

the relatively undisputed facts, the jury acquitted all seven defendants. See Postscript, infra.

74. See Zavis et al., supra note 2.

75. See U.S. FISH & WILDLIFE SERV., MALHEUR NATIONAL WILDLIFE REFUGE: COMPREHENSIVE

CONSERVATION PLAN (2013), https://catalog.data.gov/dataset/malheur-national-wildlife-refuge-

comprehensive-conservation-plan.

76. Oregonians started a petition to collect pledges in order to fund the “most appropriate groups

to combat the ignorance and hate of the Malheur NWR occupiers.” By the end of the occupation, the

movement, “Go Home Malheur” or #gohomemalheur had raised more than $135,000.

GOHOMEMALHEUR, supra note 28. The local Burns Paiute Tribe also voiced strong concerns against the

occupation, arguing that “[c]ondoning the illegal occupation of a federal facility by armed lawbreakers

only encourages others to believe they can behave in the same way, with impunity.” Hammill, supra

note 28. Harney County Judge Steve Grasty, who opposed the Bundy occupation, survived a recall

election, with voters overwhelmingly (some 70 percent) rejecting the recall. See Selsky, supra note 28.

On the other hand, some locals “have welcomed the occupation and the attention it has brought to local

frustration over the management of federal lands.” See Amelia Templeton, Oregon Occupation Sheds

Light on Local Frustrations, But Divides Residents, NPR (Jan. 5, 2016), http://www.npr.org/

2016/01/05/462052656/oregon-standoff-sheds-light-on-local-frustrations-but-divides-residents (last

visited Dec. 15, 2016).

77. Bundy’s reading of the Constitution reflects the views of Cleon Skousen, a far-right political

thinker. See Betsy Gaines Quammen, The War for the West Rages On, N.Y. TIMES (Jan. 29, 2016),

http://www.nytimes.com/2016/01/30/opinion/the-war-for-the-west-rages-on.html?_r=0. Cleon Skousen

was an “exemplar of the right-wing ultras;” his interpretation of the Constitution was that the Founders

sought to establish a Christian Nation, with a Christian God, and “never intended the federal government

to have any power over its people.” See Nigel Duara, Oregon Armed Protesters Invoke the Constitution

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794 ECOLOGY LAW QUARTERLY [Vol.43:781

Although the occupation provided Bundy with a broader platform for his

message, he risked a lengthy prison term.

However, the intense media

coverage of the Malheur Refuge occupation may have buoyed the political

momentum for Bundy’s cause.

Whatever his political prospects may be,

Bundy’s legal claims are completely unfounded, as the next Parts demonstrate.

II. THE PROPERTY CLAUSE AND ITS INTERPRETATION

This Part discusses the origins of the Property Clause and analyzes its

interpretation by both the Supreme Court and Congress. The first subpart

explains that the Property Clause ratified the Northwest Ordinance of 1787,

which aimed, among other things, to give the federal government control over

western settlement, at least in the area north of the Ohio River. The second

subpart discusses the Supreme Court’s decisions interpreting federal power

under the Property Clause, which the Court consistently held to be “without

limitation.” The third subpart provides examples of how Congress has used its

broad Property Clause powers to manage federal lands.

A. The Northwest Ordinance

The 1787 Northwest Ordinance, the most significant legislation enacted by

the Confederation Congress, passed with near unanimity, reflecting general

agreement as to how the federal government should manage the western lands

ceded to it by the states.

Although the ordinance ratified federal control of the

– Annotated by a Conspiracy Theorist, L.A. TIMES (Jan. 21, 2016, 6:27 PM), http://www.latimes.com/

nation/la-na-ff-oregon-standoff-constitution-20160121-story.html. Skousen relied on quotations from

the Founders, either deliberately altered or taken out of context, to illustrate the need for people to take

power for themselves and exclude the government from their affairs. See id.

78. See supra notes 47–48 and accompanying text. If convicted, Bundy could have faced between

six years and two decades in prison. See Sara Roth, What to Know Before the Oregon Occupation Trial

Begins, KGW (Sept. 1, 2016), http://www.kgw.com/news/investigations/bundy-occupation-trial-in-

september-what-to-expect/312650362. Although the law was clearly against them, the Bundys avoided

conviction because of “unpredictable juries.” See Jeremy P. Jacobs, Why Bundy Convictions are No

Slam Dunk: Unpredictable Juries, GREENWIRE (Oct. 11, 2016), http://www.eenews.net/greenwire/

2016/10/11/stories/1060044089 (explaining that “[a]ttorneys who have experience trying cases in

Western states have found juries notoriously unpredictable and hard to read in trials involving public

lands and property rights”). Jacobs’ predictions turned out to be true as the jury acquitted all seven

defendants on October 27, 2016. See Postscript, infra.

79. Public land management became an issue in the presidential election of 2016. See, e.g., Rocky

Barker, GOP Candidates Divided Over Public Land in Idaho, West, IDAHO STATESMAN (Feb. 19, 2016,

2:20 PM), http://www.idahostatesman.com/news/politics-government/election/article61349767.html;

see also Peterson, supra note 15 (discussing the 2016 Republican Platform provision to convey federal

lands to the states).

80. See Matthew J. Festa, Property and Republicanism in the Northwest Ordinance, 45 ARIZ. ST.

L. J. 409, 427 (2014) (explaining the federal government’s acceptance of the first state land cessions in

the 1780s). New York was first in 1782; Virginia in 1784; Massachusetts in 1785; and Connecticut in

1786. See NORMAN K. RISJORD, JEFFERSON’S AMERICA: 1760-1815, at 200–01 (3d ed. 2009). The day

that Virginia ceded its claims, Thomas Jefferson, chair of a committee deciding the issue of the western

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western settlements, the statute also prohibited slavery,

established a process

to admit new states to the Union “on an equal footing,”

anticipated federal-

land sales to repay the Revolutionary War debt,

and called for good-faith

dealings with local Indian tribes and protection of native property rights.

Throughout its text, the statute exhibited anti-colonial and anti-monarchial

sentiments, reflecting Thomas Jefferson’s ideals.

The legislation aimed to

promote both widespread land ownership and participation in civic life,

consistent with Jeffersonian notions about property.

These anti-monopolistic

ideas inspired the Property , Contract, Takings, and Due Process Clauses of the

U.S. Constitution, all of which are traceable to the Northwest Ordinance.

Before 1784, conflicts with Native Americans impeded settlement of

western lands and made for an unstable western frontier. Alexander Hamilton

ingeniously proposed that the federal government assume the states’

considerable Revolutionary War debts if the states with western claims (about

half the original states) ceded their claims to the federal government.

After

the states largely ratified that deal,

the new federal government prioritized the

cession of state claims to western lands. New York became the first state to

cede title to its claims in 1782, and Virginia came next in 1784.

The rest of

territories, submitted the first draft of what would become the Northwest Ordinance. See JAY A.

BARRETT, EVOLUTION OF THE ORDINANCE OF 1787, at 17–18 (1891).

81. Ordinance of 1787: The Northwest Territorial Government, art. VI, reprinted in 1 U.S.C.

LVII (2012) [hereinafter Northwest Ordinance].

82. Northwest Ordinance, art. V.

83. See Festa, supra note 80, at 412.

84. Northwest Ordinance, art. III.

85. See Blumm & Tebeau, supra note 29, at 163–65. Anti-monarchial sentiments fueled Anti-

Federalist concern over widespread federal ownership of Western lands as a source of wealth

independent of taxpayer control. See Carol M. Rose, Claiming While Complaining on the Federal

Public Lands: A Problem for Public Property or a Special Case?, 104 GEO. L. J. ONLINE 95, 107-11

(2015) (suggesting that this sentiment was a legacy of the English Civil War and King Charles I’s efforts

to evade parliamentary control, later dismissed by Joseph Story as inapplicable to a republic like the

United States).

86. See Festa, supra note 80, at 432.

87. See id. at 442. Jefferson was in fact a principal drafter of the initial ordinance, which the

Confederation Congress first enacted in 1784. See id.; LIBR. OF CONGRESS, PRINTED RESOLUTION ON

W. TERRITORY GOV’T; WITH NOTATIONS BY THOMAS JEFFERSON (1784), https://www.loc.gov/

item/mtjbib000873/.

88. See Festa, supra note 80, at 416.

89. Although the Revolutionary War debt was with the individual states (whose uncertain funding

undermined the war effort), in 1790 Alexander Hamilton convinced Congress to assume the remaining

debt. His idea was that the federal government would finance the debt largely through public-land sales.

See RON CHERNOW, ALEXANDER HAMILTON 176–77 (2004); Paul W. Gates, An Overview of American

Land Policy, 50 AGRIC. POL’Y 213, 217 (1976).

90. See JOSEPH ELLIS, FOUNDING BROTHERS: THE REVOLUTIONARY GENERATION 73–74 (2002).

91. See PETER S. ONUF, THE ORIGINS OF THE FEDERAL REPUBLIC: JURISDICTIONAL

CONTROVERSIES IN THE UNITED STATES 104 (1983); see also 26 J. OF THE CONTINENTAL CONGRESS 90

(Feb. 23, 1784), http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28jc02

648%29%29.

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the states with western-land claims followed.

The federal government

followed the plan codified in the Northwest Ordinance, and created new

republican settlements in the West that eventually became new states, entering

the union “on equal footing with the said original states.”

The focus on

equality reflected the anti-colonial sentiment widespread in Revolutionary

America.

1. Managing Western Settlements

The Northwest Ordinance established a framework of surveying and then

selling the western lands in an orderly fashion, providing security for individual

property rights recognized by the federal government and financing the war

debt.

The ordinance provided the government with the ability to manage and

dispose of lands for the public benefit. Once in possession of western lands, the

United States government sold them to settle its Revolutionary War debts.

owner and manager of these lands, the federal government also resolved some

of the conflicts animating the West by giving settlers the security of legally

recognized title

and working with the Native Americans to minimize the risks

of war by pledging “good faith” toward them and security for their “property,

rights and liberty.”

The Northwest Ordinance also introduced the concept of compensation for

government takings of private land. Article II of the ordinance provided:

“[S]hould the public exigencies make it necessary, for the common

preservation, to take any person’s property, or to demand his particular

services, full compensation shall be made for the same.”

The ordinance’s

recognition of the federal eminent domain power shows that even after selling

lands to settlers, the government retained the ability to take private land for

92. The so-called “landed” states had a great potential advantage over the six “landless” states:

the sale of western lands would enrich the landed states, while the landless states feared they would lose

residents and significance. Most states quickly followed the example of New York and Virginia, two of

the largest states. But Georgia did not cede its western lands until 1802, twelve years after all the other

states. See Onuf, supra note 91, at 104–05. And Connecticut, while ceding the rest of its claims, did not

cede its Western Reserve in Ohio until 1800. Festa, supra note 80, at 429 n.118.

93. Northwest Ordinance, art. V (“[W]henever any of the said states shall have sixty thousand

free inhabitants therein, such state shall be admitted, by its delegates, into the Congress of the United

States, on an equal footing with the original states in all respects whatever”).

94. See PETER S. ONUF, STATEHOOD AND UNION: A HISTORY OF THE NORTHWEST ORDINANCE

31, 33 (1987).

95. By 1795, the U.S. government no longer owed money to foreign governments. U.S. Debt and

Foreign Loans, 1775–1795, in U.S. DEPT. OF STATE, OFFICE OF THE HISTORIAN, https://history.

0state.gov/milestones/1784-1800/loans (last visited Mar. 2, 2016).

96. See Robert S. Hill, Federalism, Republicanism, and the Northwest Ordinance, 18 PUBLIUS

41, 51–52 (1988).

97. Northwest Ordinance, art. III. See Festa, supra note 80, at 428, 434. Under the Indian

Commerce Clause, U.S. Const. art. I, § 8, cl. 3, and the Non-Intercourse Act of 1790, Pub. L. No. 1-33,

§ 4, 1 Stat. 137 (1790), the federal government had exclusive authority to negotiate treaties with Indian

tribes.

98. Northwest Ordinance, art. II.

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public use upon providing just compensation. Thus, as early as 1787, the

federal government announced its sovereign authority over private lands as

well as declaring that it would use its proprietary power over public lands for

the benefit of the public.

The Northwest Ordinance created a legal and political framework aimed at

promoting the economic and social development of the West.

Reflecting

antimonopoly sentiment, the ordinance sought to spread land ownership among

a large number of settlers. Widespread land ownership created an incentive to

participate in political life as a citizen.

100

By providing security of land title, the

ordinance sought to invest settlers in the development of stable communities.

Finally, Article IV of the Northwest Ordinance required new states

admitted to the Union to not interfere with the disposal of land by the United

States or with the title to land granted to bona fide purchasers.

101

This promise

of non-interference with federal management reflected federal supremacy over

state rules concerning public land and promoted security for individuals who

purchased lands from the government.

102

2. Prohibiting Slavery in the Northwest

Article VI of the Northwest Ordinance declared that “[t]here shall be

neither Slavery nor involuntary Servitude in the said territory,”

103

a provision

reflecting the federal government’s broad authority to enact laws regulating the

lands it owned and to control the disposition of private property rights.

Later, the text of the Property Clause and the cases interpreting it

reiterated and amplified this power. Abolishing slavery north of the Ohio River

was a republican idea.

104

Prohibiting slavery had important effects on property

rights, not merely affecting existing landowners’ property rights in the

Northwest, but also effectively precluding large, slave-owning plantation

owners from moving to the Northwest. The Northwest Ordinance instead

favored widespread distribution of property among smaller, independent

farmers.

105

By disfavoring large plantation owners, the ordinance reflected the

99. See Peter S. Onuf, Liberty, Development, and Union: Visions of the West in the 1780s, 43

WM. & MARY Q. 179, 181 (1986).

100. See WILLI PAUL ADAMS, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN IDEOLOGY

AND THE MAKING OF THE STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA 191–92 (2001).

101. Northwest Ordinance, art. IV.

102. See Festa, supra note 80, at 437. The ordinance was in part a response to the Shays’ Rebellion

of 1786, which raised questions about the ability of a republican government to provide “an ordered

society that would provide security for liberty and property to the yeoman settlers.” The ordinance

aimed to protect both personal and land rights and, in so doing, root “republicanism in the habits of the

people.” See Hill, supra note 96, at 52.

103. Northwest Ordinance, art. VI.

104. See Festa, supra note 80, at 458 (abolishing slavery was part of the “larger republican vision

for the new territory”).

105. See supra text following note 99 and accompanying note 100; David Brion Davis, The

Significance of Excluding Slavery from the Old Northwest in 1787, 84 IND. MAG. OF HIST. 75, 88–89

(1988).

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798 ECOLOGY LAW QUARTERLY [Vol.43:781

Framers’ disapproval of colonial governments’ practice of awarding land

monopolies.

106

3. Reducing Inequalities Among States

The Northwest Ordinance called for the admission of new states on “equal

footing,” conditioned on the guarantee of a republican form of government.

107

Combined with several modifications of property rights that the ordinance

implemented,

108

its equal-footing doctrine meant that western lands were the

property of the United States, but the federal government would not treat the

territories as colonies.

109

Instead, the federal government would act as a trustee

and ensure that new states admitted to the Union possessed the same sovereign

attributes of the original thirteen states.

110

This trust concept later became important in Supreme Court interpretation

of the so-called equal footing cases, extending from Pollard v. Hagan in

1845

111

to Arizona v. California in 1963

112

to Idaho v. United States in

2001.

113

The Court also used trust language to interpret the Property Clause, as

in Light v. United States,

114

where the Court ratified the notion that the federal

government manages public lands as a sovereign with a trust obligation to the

public.

115

B. Judicial Interpretation of the Property Clause

Over the years, the Supreme Court has interpreted the Property Clause

infrequently but consistently. With nearly no exception, the Court has ruled that

106. See John F. Hart, Colonial Land Use Law and its Significance for Modern Takings Doctrine,

109 HARV. L. REV. 1252, 1257–58, 1278–79 (1996) (awarding land monopolies favored economic

elites; by favoring widespread ownership of lands, however, the Framers sought to diminish the power

of elites by offering great numbers of people the opportunities to own lands and to participate in political

life).

107. See ONUF, supra note 94, at 58–59.

108. The Northwest Ordinance established an intestacy scheme that promoted greater equality and

encouraged wider distribution of property among citizens. See Festa, supra note 80, at 439. By

increasing the number of property owners, the ordinance also created more stakeholders in the political

process by giving them the right to participate in political life. See id. at 440. The ordinance also

facilitated the free alienability of real and personal property through voluntary transfer, another

important property rule. Northwest Ordinance, art. II.

109. See Festa, supra note 80, at 460.

110. See id.

111. 44 U.S. 212 (1845) (statehood implicitly conveyed to the states title to lands submerged

beneath navigable waters at statehood).

112. 373 U.S. 546, 597–98 (1963) (statehood did not implicitly convey federal public uplands to

the states).

113. 533 U.S. 262 (2001) (upholding a federal pre-statehood reservation of lands to the Coeur

d’Alene Tribe).

114. 220 U.S. 523 (1911) (upholding the Forest Service’s authority to require permits and fees on

national forest lands).

115. Id. at 537.

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the federal power under the Property Clause is “without limitation.”

116

This

subpart briefly explains this Property Clause case law.

117

1. Disposing of Federal Lands

The Supreme Court’s first Property Clause decision concerned a challenge

to an 1807 federal statute authorizing the President to lease lead mines on

federally owned lands in what became the state of Illinois in 1818.

118

Assuming a position remarkably similar to modern Sagebrush Rebels,

119

John

Gratiot argued that Congress possessed authority only to dispose of public

lands and make “needful rules and regulations” respecting the preparation of

116. See, e.g., United States v. Gratiot, 39 U.S. 526, 537 (1840); Light, 220 U.S. at 537; United

States v. City of San Francisco, 310 U.S. 16, 29 (1940). The only exception to the broad interpretation of

the Property Clause came in the most reviled Supreme Court decision in constitutional history, Dred

Scott v. Sandford, 60 U.S. 393 (1857), which helped to bring on the Civil War. Scott sued his master to

gain his freedom and, after trial, the Missouri Supreme Court rejected his claim for freedom based on his

earlier residences in free states and territories. Id. at 398, 431–32. Scott then attempted to collaterally

attack that decision in federal court, which rejected his attempt to establish diversity jurisdiction. Id. at

400. The Supreme Court surprisingly accepted certiorari and affirmed. See id. at 454. Justice Taney’s

opinion for a divided Court relied on the Framers’ intent to conclude that Scott, as an African-American,

was not a citizen of any state, thus denying him the ability to invoke federal diversity jurisdiction. Id. at

403–29. Although Taney proceeded to examine the Property Clause and conclude that Congress lacked

the authority to establish rules for federal territories in the West that were not in the Union at the time of

the Constitution, id. at 432–52, that part of the opinion was obiter dicta and not clearly the opinion of a

majority of the Court (there were seven opinions in the case). The Supreme Court has never relied on the

Property Clause portion of Justice Taney’s opinion in any subsequent Supreme Court decision.

117. For a comprehensive analysis of the Supreme Court’s Property Clause jurisprudence, see

Appel, supra note 25.

118. Gratiot, 39 U.S. 526. The 1807 statute calling for leasing of lead mines was not the first time

the federal government reserved federal lands. For example, in 1785 and 1786, federal treaties with the

Cherokee, Choctaw, and Creek tribes recognized Indian land reservations. Treaty with the Cherokee,

Cherokee-U.S., Nov. 28, 1785, 7 Stat. 18; Treaty with the Choctaw, Choctaw-U.S., Jan. 3, 1786, 7 Stat.

21, Treaty with the Chickasaw, Chickasaw-U.S., Jan. 10, 1786, 7 Stat. 24. And although the first large

non-Indian land reservation is often thought to the Yellowstone reservation in 1872, actually the

government reserved the lands which would become Hot Springs National Park in Arkansas in 1832,

eight years before the Supreme Court affirmed the lead mines leasing legislation in its 1840 decision in

Gratiot. See Sharon Shugart, Dep’t of the Interior, Nat’l Park Service, The Hot Springs of Arkansas

Through the Years: A Chronology of Events 3, 5 (2004), https://web.archive.org/

web/20150401131042/http://www.nps.gov/hosp/learn/historyculture/upload/chronology.web.pdf

(explaining that President Andrew Jackson reserved the area in 1832, well before it became a National

Park in 1921). All of these land reservations, along with forest reserves set aside under the authority of

the General Land Law Revision Act of 1891 by Presidents Harrison and Cleveland, were reserved

before the state of Utah was admitted to the Union in 1896. See Robert D. Baker et. al., Timeless

Heritage: A History of the Forest Service in the Southwest 55 (1988), www.fs.usda.gov/

Internet/FSE_DOCUMENTS/stelprdb5438144.pdf (retracing the history of forest reservations and

explaining the role of Presidents Harrison, Cleveland and McKinley). So the notion that Utah could not

reasonably anticipate federal land reservations at the time of statehood is inconsistent with the historical

record.

119. John Gratiot’s argument that the Property Clause authorized the government only to sell

public lands is the main claim asserted by the Bundy movement. See Jenny Rowland, The Bundy Legal

Defense: Feds Have No Jurisdiction Over Federal Lands, THINK PROGRESS (Apr. 27, 2016),

https://thinkprogress.org/the-bundy-legal-defense-feds-have-no-jurisdiction-over-federal-lands-

a48d09b5884b#.bqsg29flc.

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800 ECOLOGY LAW QUARTERLY [Vol.43:781

the lands for sale.

120

He therefore maintained that leasing public lands

constituted an unlawful exercise of congressional power under the Property

Clause.

121

Resolving a divided lower court decision, the Supreme Court

rejected Gratiot’s argument and decided that Congress had the constitutional

authority to dispose of federal property any way it wished, including leasing

lead mines.

122

According to the 1840 Court, federal authority over public lands

was “without limitation.”

123

A long line of Court decisions repeated this language. The Gratiot

decision upheld the essentially unreviewable discretion of Congress to lease,

sell, or maintain federal lands. The Court added that the state of Illinois could

not “claim a right to the public lands within her limits,”

124

so the federal

Property Clause power remained unaffected by statehood.

125

Over a century later, in United States v. City of San Francisco, the

Supreme Court considered the legality of a conditional transfer of interests in

federal lands.

126

Congress conveyed public lands to the city for electricity use

on the condition that the municipality would sell the electricity directly to the

city residents, not to a monopolistic private utility.

127

The city challenged those

conditions as beyond the power of Congress.

128

The district court enjoined the

city from selling power to Pacific Gas and Electric, a private utility.

129

The

Supreme Court affirmed, reiterating that Congress’s Property Clause powers

were “without limitations,” and declaring that the Property Clause permitted

“an exercise of the complete power which Congress has over particular public

property entrusted to it.”

130

The Court therefore upheld the conditional transfer

of land that forbade the monopolization of hydropower produced on federal

lands, illustrating the plenary power of the federal government to manage

public lands for the “benefit of the people.”

131

120. Gratiot, 39 U.S. at 531–32.

121. Id.

122. Id.

123. Id. at 537.

124. Id. at 538.

125. Of course, states obtained many lands (and incurred several obligations) in their statehood

acts, aimed at providing lands for public schools, veterans, state buildings, penitentiaries, and

universities. See, e.g., Oregon Statehood Act, ch. 33, § 4, 11 Stat. 383, 383–84 (1859); see also North

Dakota, South Dakota, Montana, and Washington Statehood Acts, ch. 180, §§ 10–18, 25 Stat. 676, 679–

82 (1889).

126. 310 U.S. 16 (1940).

127. Id. at 18–19.

128. Id. at 19.

129. Id.

130. Id. at 29, 30. The court noted that Congress’s Property Clause powers did not entail a federal

general police power. See id. at 30.

131. Id. at 23 (quoting the legislative history of the bill at issue).

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2. Managing Federal Lands

In Camfield v. United States, the first post-Civil War Property Clause case

decided by the Supreme Court, Daniel Camfield tried to fence in approximately

20,000 acres of public lands in Colorado.

132

Although he did not technically

fence public land (made illegal by the Unlawful Inclosures of Public Lands Act

of 1885),

133

Camfield did fence his checkerboarded private lands in such a way

as to enclose adjacent public lands as well.

134

At the federal government’s

request, a lower court enjoined erection of the fence.

135

The court of appeals

affirmed, and so did a unanimous Supreme Court.

136

The Court determined that the federal government not only possessed

proprietary powers over its own lands, it also held sovereign powers, enabling

it to order the removal of fences on private land because they interfered with

congressional policy established by the Unlawful Inclosures Act.

137

In his

opinion for the Court, Justice Brown declared that the “government doubtless

has a power over its own property analogous to the police power of the several

states, and the extent to which it may go in the exercise of such power is

measured by the exigencies of the particular case.”

138

Under Camfield, the

federal government can employ its authority as a landowner to manage uses on

its lands as it sees fit; it may also invoke its sovereign powers to regulate

activities on private lands adversely affecting public lands. The Court declared

that “[a] different rule would place the public domain of the United States

completely at the mercy of state legislation.”

139

Two decades after Camfield, in United States. v. Grimaud,

140

grazers on

the federal Sierra Forest Reserve in southern California challenged the

authority of the Forest Service to regulate their grazing and charge them for

their use of public lands. Pierre Grimaud claimed that the management of the

reserve by the Forest Service amounted to an unconstitutional delegation of

legislative authority.

141

He therefore alleged that requiring grazing permits and

fees was unlawful.

142

The district court ruled in favor of Grimaud, and the

Ninth Circuit affirmed, but the Supreme Court reversed in a unanimous opinion

by Justice Joseph Lamar.

143

The Court upheld as a permissible delegation of

132. 167 U.S. 518, 519 (1897).

133. Ch. 149, 23 Stat. 321 (1885) (codified as amended at 43 U.S.C. §§ 1061–1066 (2012)).

134. Camfield, 167 U.S. at 519.

135. Id. at 521.

136. Id. at 528.

137. Id. at 524.

138. Id. at 525.

139. Id. at 526.

140. 220 U.S. 506, 514 (1911).

141. Id. at 514.

142. Id.

143. Id. at 523. According to the leading casebook, Grimaud was a “remarkable” decision, because

the Court originally affirmed the lower court’s ruling in favor of Grimaud on a 4-4 vote. But the Court

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802 ECOLOGY LAW QUARTERLY [Vol.43:781

legislative power

144

the Agriculture Secretary’s authority under the Organic

Administration Act

145

to establish and enforce administrative rules in order to

“insure [protection of] the objects of such reservation.”

146

Thus, the delegation

of authority to the Forest Service to manage national forests remained well

within Congress’s powers under the Property Clause.

147

The same day that it decided Grimaud, the Court also handed down Light

v. United States,

148

a case involving a Colorado grazer who allowed his cattle

to graze next to federal land. When the cattle roamed onto the public land, he

declined to remove them and—in a claim resembling those raised by the Bundy

confrontations—argued that the government could not require him to prevent

his cattle from using the adjacent federal land unless the government fenced the

forest reserve.

149

Fred Light relied on Colorado state law requiring a landowner

to fence his land in order to recover damages for trespass.

150

The lower court

found for the government and enjoined Light from cattle trespass on federal

lands.

151

The Supreme Court affirmed, holding that Colorado’s fence laws were not

a justification for trespassing on the public domain.

152

Citing Buford v.

Houtz,

153

the Court declared that the implied consent to roam on unfenced

lands under Colorado law conferred no vested rights, and that the federal

government retained the power to recall any implied license Light may have

enjoyed.

154

Justice Lamar declared that “[t]he United States can prohibit

absolutely or fix the terms on which its property may be used. As it can

withhold or reserve the land, it can do so indefinitely.”

155

Light and Grimaud

settled the constitutionality of the 1897 Organic Administration Act governing

national forest lands and reaffirmed broad congressional power to manage

federal lands under the Property Clause, including the ability to preempt

conflicting state laws.

156

The Court’s next encounter with the Property Clause occurred in the 1917

case of Utah Power and Light v. United States, which concerned a utility’s

then proceeded to grant the federal government’s petition for rehearing, and a year later reversed without

a dissent. See Coggins, et al, supra note 16, at 118.

144. Grimaud, 220 U.S. at 521.

145. Ch. 2, 30 Stat. 34 (1897) (codified as amended in scattered sections of 16 U.S.C.).

146. Grimaud, 220 U.S. at 515; 30 Stat. at 35 (codified as amended at 16. U.S.C. § 551 (2012)).

147. Grimaud, 220 U.S. at 521.

148. 220 U.S. 523, 535 (1911).

149. Id. (Light claimed that “unless the government put a fence around the reserve, it had no

remedy, either at law or in equity, nor could he be required to prevent his cattle straying upon the

reserve from the open public land on which he had a right to turn them loose.”).

150. Id. at 526.

151. Id.

152. Id. at 537.

153. 133 U.S. 320 (1890) (declaring that public-lands grazers had an implied license to roam on

unfenced public lands).

154. Light, 220 U.S. at 535.

155. Id. at 536.

156. Id. at 537–38; United States v. Grimaud, 220 U.S. 506, 523 (1911).

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unpermitted electric facilities on national forest land.

157

Utah Power contended

that since the land was never ceded to the federal government under the

Enclave Clause, only state law governed.

158

The lower court ruled against the

utility, and a unanimous Supreme Court affirmed in an opinion by Justice Van

Devanter, who wrote that “the power of Congress is exclusive and that only

through its exercise in some form can rights in lands belonging to the U.S. be

acquired.”

159

The Court reiterated the notion first expressed in Camfield that

the federal government would be at the mercy of state legislation without this

exclusive power.

160

Justice Van Devanter declared that “state laws, including

those relating to the exercise of the power of eminent domain, have no bearing

upon a controversy such as here presented.”

161

Thus, as first established in

Light, state laws may be preempted on federal land.

162

Decisions like Camfield, Grimaud, Light, and Utah Power made clear that

the inclusion of federal lands within state boundaries did not undermine the

federal power to control occupancy and use of public lands.

163

Instead, the

federal government retained plenary authority to protect its lands from trespass

and injury and to prescribe the conditions upon which users may obtain rights

in these federal lands.

3. Protecting Federal Lands

Kleppe v. New Mexico,

164

the most important recent Property Clause case,

considered the power of Congress under the Property Clause to protect wildlife

on federal lands when doing so conflicted with state laws. The dispute began

when a public-land grazer invoked the New Mexico Estray Law to round up

wild horses near a water source and sell them.

165

The federal Wild Free-

Roaming Horses and Burros Act

166

protected the horses and required the grazer

157. 243 U.S. 389 (1917).

158. See id. at 403. The Enclave Clause provides for federal authority over the District of

Columbia and other federal enclaves; states must consent for the Enclave Clause to apply on their

territory. See Appel, supra note 25, at 4 n.15.

159. Utah Power, 243 U.S. at 404. Justice Van Devanter was well-equipped to discuss the power

of Congress under the Property Clause, given his experience as assistant attorney general assigned to the

Department of Interior in Washington, D.C. See Lori Van Pelt, Willis Van Devanter, Cheyenne Lawyer

and U.S. Supreme Court Justice, WYO. STATE HISTORICAL SOC’Y, http://www.wyohistory.org/

encyclopedia/willis-van-devanter-cheyenne-lawyer-and-us-supreme-court-justice (last visited Mar. 31,

2016).

160. Utah Power, 243 U.S. at 405.

161. Id.

162. Light v. United States, 220 U.S. 523, 532 (1911).

163. See 16 U.S.C. § 551 (2012) (authorizing the Forest Service to regulate “occupancy and use”

of national forest land); United States v. City of San Francisco, 310 U.S. 16, 18–19 (1940) (upholding

the federal government’s grant to allow San Francisco to generate electricity on the condition that only a

public utility could sell that electricity).

164. 426 U.S. 529 (1976).

165. Id. at 533.

166. Pub. L. No. 92–195 (1971) (codified as amended at 16 U.S.C. §§ 1331–1340 (2012)).

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804 ECOLOGY LAW QUARTERLY [Vol.43:781

to notify BLM if they were interfering with his cattle.

167

When BLM refused to

allow an auction sale of the horses, the state sued, challenging the

constitutionality of the federal statute.

168

The lower court declared the Act

unconstitutional and enjoined the federal government from enforcing it,

deciding that the wild animals did not become federal property by merely being

on federal land; therefore, the government could not regulate them.

169

The Supreme Court unanimously reversed, upholding the constitutionality

of the Wild Horses Act as a “needful regulation ‘respecting’ the public

lands,”

170

and deferring to Congress’s determination of what constituted a

“needful regulation.”

171

The Court also upheld the congressional finding that

the horses were an integral part of the natural system of the public lands,

172

expressly rejecting the state’s argument that the Enclave Clause limited the

government’s authority under the Property Clause.

173

Justice Thurgood

Marshall’s opinion noted that even if a state retained jurisdiction over federal

lands within its territory under the Enclave Clause, Congress retained the power

under the Property Clause to enact legislation affecting federal lands.

174

In case

of conflict with state law, the federal legislation prevailed under the Supremacy

Clause.

175

Finally, the Kleppe Court qualified its previous holding in Geer v.

Connecticut, which upheld broad state power over the taking and possession of

wildlife under the “state ownership” doctrine,

176

rejecting the argument that

167. 16 U.S.C. § 1334 (2012).

168. Kleppe, 426 U.S. at 534. An auction of the wild horses would most likely be won by

slaughterhouses wishing to sell horsemeat in dog food.

169. See id. (discussing the district court decision).

170. Id. at 536.

171. Id. (such a determination should be “entrusted primarily to the judgment of Congress”).

172. See 16 U.S.C. § 1331 (2012) (“Congress finds and declares that wild free-roaming horses and

burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the

diversity of life forms within the Nation and enrich the lives of the American people; and that these

horses and burros are fast disappearing from the American scene. It is the policy of Congress that wild

free-roaming horses and burros shall be protected from capture, branding, harassment, or death; and to

accomplish this they are to be considered in the area where presently found, as an integral part of the

natural system of the public lands”).

173. Kleppe, 426 U.S. at 541–43. The state argued that the Enclave Clause required that it consent

to federal jurisdiction before Congress could exercise its authority to manage the federal lands. Id.

However, the Court ruled that

while Congress can acquire exclusive or partial jurisdiction over lands within a State by the

State’s consent or cession [under the Enclave Clause], the presence or absence of such

jurisdiction has nothing to do with Congress’ powers under the Property Clause. Absent

consent or cession a State undoubtedly retains jurisdiction over federal lands within its

territory, but Congress equally surely retains the power to enact legislation respecting those

lands pursuant to the Property Clause.

Id. at 542-43.

174. Id. at 542.

175. Id. at 543 (“A different rule would place the public domain of the United States completely at

the mercy of state legislation.” (citing Camfield v. United States, 167 U. S. 518, 526 (1897))).

176. Geer v. Connecticut, 161 U.S. 519 (1896) (upholding the state of Connecticut’s ban on out-

of-season, interstate transport of harvested wildlife on the ground that the state, as owner of the wildlife,

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state ownership of wildlife restricted Congress from enacting wildlife

legislation if it conflicted with state wildlife law.

177

Although Kleppe focused on regulation of nonfederal activity on federal

public lands, the opinion did suggest that federal authority over wild horses

extended to nonfederal lands.

178

Following the case, lower courts consistently

reaffirmed broad Property Clause power.

179

For example, in Minnesota v.

Block, the Eighth Circuit held that Congress’s power included regulation of

conduct off of public land that threatened the designated purpose of federal

lands.

180

At least within a federal reservation, federal authority includes the

ability to impose restrictions on nonfederal lands reasonably related to

protecting both the purposes and authorized uses of the federal land.

181

C. Congressional Interpretation of the Property Clause

Toward the end of the nineteenth century, Congress gradually shifted

federal policy from privatizing public lands to managing them for conservation,

recreation, and other public uses.

182

This subpart surveys some of the main

statutes that Congress enacted to promote these policies. As early as 1872,

Congress reserved public lands in the territories of Montana and Wyoming for

what would become the nation’s first national park “as a public park or

pleasuring-ground for the benefit and enjoyment of the people.”

183

Congress

could regulate its harvest and transport); see Michael C. Blumm & Aurora Paulsen, The Public Trust in

Wildlife, 2013 Utah L. Rev. 1437, 1451–65 (discussing Geer).

177. Kleppe, 426 U.S. at 545 (“The Act does not establish exclusive federal jurisdiction over the

public lands in New Mexico; it merely overrides the New Mexico Estray Law insofar as it attempts to

regulate federally protected animals. And that is but the necessary consequence of valid legislation

under the Property Clause.”). In Hughes v. Oklahoma, 441 U.S. 322 (1979), the Court called it a

“fiction” that states own the wildlife. Id. at 337. Although Hughes did not affect states’ sovereign

ownership of wildlife, the Court declared that state ownership did not insulate states from discrimination

against interstate commerce: under the Commerce Clause, since federal law can expressly preempt state

wildlife laws. Id. at 335–36.

178. Kleppe, 426 U.S. at 546 (“[I]t is clear that regulations under the Property Clause may have

some effect on private lands not otherwise under federal control.”).

179. See, e.g., United States v. Vogler, 859 F.2d 638, 641 (9th Cir. 1988) (“Congressional power

to regulate federal land under the property clause is in no way limited to the regulation of land held

before ratification of the Constitution.”); Diamond Bar Cattle v. United States, 168 F.3d 1209, 1214

(10th Cir. 1999) (ruling that a state statute purporting to grant possessory grazing interests on national

forest land, provided no enforceable right against the federal government); United States v. Armstrong,

186 F.3d 1055, 1061 (8th Cir. 1999) (upholding federal regulations restricting a tour boat business lying

outside of a national park because the business adversely affected neighboring federal lands).

180. Minnesota v. Block, 660 F.2d 1240, 1249 (8th Cir. 1981).

181. Id. at 1250 (“[I]f Congress enacted the motorized use restrictions to protect the fundamental

purpose for which the BWCAW had been reserved, and if the restrictions in [the federal statute]

reasonably relate to that end, we must conclude that Congress acted within its constitutional

prerogative.”).

182. See GEORGE C. COGGINS & ROBERT L. GLICKSMAN, PUBLIC NATURAL RESOURCES LAW §

2:3 (2d ed. 2007); see also David H. Getches, Managing the Public Lands: The Authority of the

Executive to Withdraw Lands, 22 NAT. RESOURCES J. 279, 283 (1982).

183. Yellowstone National Park Protection Act of 1872, ch. 24, 17 Stat. 32 (1872) (codified as

amended at 16 U.S.C. §§ 21–40c (2012)); 16 U.S.C. § 21 (2012).

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806 ECOLOGY LAW QUARTERLY [Vol.43:781

directed the Interior Secretary to manage Yellowstone National Park, giving the

Interior Department a conservation mission for the first time.

184

Two decades after Yellowstone, Congress ushered in a new era when it

authorized the Executive to establish forest reserves under the General Revision

Act (or Forest Reserve Act) of 1891.

185

The statute enabled the President to

create forest reserves by withdrawing public lands from settlement and private

appropriation, authority that would eventually establish reservation and

management as the dominant federal land policy instead of disposition.

186

In 1897 Congress supplied management directives for the forest reserves

in the so-called National Forest Organic Act, which the Court would broadly

interpret in its Grimaud, Light, and Utah Power decisions.

187

After the transfer

of management of these forest reserves from the Department of the Interior to

the Department of Agriculture in 1905, the Forest Service became the

management agency for the National Forest System under the leadership of the

visionary Gifford Pinchot.

188

In 1911 the Supreme Court interpreted the

Organic Act to establish the Forest Service as “trustee” of the national

forests.

189

In the years following the 1872 reservation of Yellowstone, Congress set

aside other lands that would become national parks in 1916, when it enacted the

National Park Service Organic Act, establishing the National Park Service and

giving it management authority.

190

Earlier, Congress also gave broad authority

to the President to designate national monuments in the Antiquities Act of

1906, many of which later became national parks.

191

184. 16 U.S.C. § 22 (2012). Faced with difficulties in protecting the park, Congress called on the

War Secretary for assistance and, in 1886, the U.S. Army took charge of Yellowstone to enforce

regulations in the park and protect its resources from poachers and squatters. Birth of a National Park,

NAT’L PARK SERV., https://www.nps.gov/yell/learn/historyculture/yellowstoneestablishment.htm (last

visited Apr. 6, 2016).

185. Ch. 561, 26 Stat. 1095 (1891).

186. See COGGINS & GLICKSMAN, supra note 182, § 2:16; Getches, supra note 182, at 313.

187. See supra notes 140–163 and accompanying text; National Forest Organic Act of 1897, ch. 2,

30 Stat. 34 (1897) (codified as amended in scattered sections of 16 U.S.C.). The Act sought to protect

the forest from fire, preserve watersheds, and promote timber production. 16 U.S.C. §§ 551c, 563, 569

(2012); see also United States v. New Mexico, 438 U.S. 696, 707 (1978) (concluding that the primary

purposes of the Organic Act were to promote timber harvests and watershed protection).

188. See Managing Multiple Use on National Forests, 1905-1995, U.S. FOREST SERV.,

http://www.foresthistory.org/ASPNET/Publications/multiple_use/chap1.htm (last visited Mar. 12,

2016).

189. Light v. United States, 220 U.S. 523, 537 (1911). (“All the public lands of the nation are held

in trust for the people of the whole country.” (citing United States v. Trinidad Coal Co., 137 U.S. 160

(1890))).

190. National Park Service Organic Act of 1916, ch. 408, 39 Stat. 535; Hot Springs Reservation

Act, ch. 126, 16 Stat. 149 (1877); Yosemite Reservation Act, ch. 184, 13 Stat. 325 (1864).

191. American Antiquities Act of 1906, ch. 3060, 34 Stat. 225 (1906) (codified as amended at 16

U.S.C. §§ 431–433 (2012)). The Antiquities Act has been used by sixteen presidents. Congress has also

invoked the Act forty times. See The Antiquities Act, WILDERNESS SOC’Y, http://wilderness.org/

article/antiquities-act (last visited Mar. 12, 2016). The Antiquities Act has been under recent attack by

some lawmakers, including Rep. Don Young (R-Aka.), former Chair of the House Committee on

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The Park Service regulates the national parks and most national

monuments with the purpose of conserving the scenery, wildlife, and historic

resources to leave the reservations “unimpaired for the enjoyment of future

generations.”

192

Today, the National Park System comprises more than four

hundred different areas,

193

illustrating the repeated use of Congress’s Property

Clause powers to manage and protect federal lands for public benefit.

After establishing a new framework to provide for the reservation of

public lands in national forests, parks, and similar areas for conservation

purposes, Congress turned its focus to more specific land-use activities,

principally out of concern over overexploitation of mineral resources. This

concern resulted in a policy shift in managing public lands containing oil. In

1909 President Taft withdrew oil lands in California and Wyoming to prevent

private mineral entry under the Mining Act.

194

The government then filed suit

against Midwest Oil Company in the District Court for the District of

Wyoming, seeking to recover the reserved lands from mineral claimants and to

Transportation and Infrastructure, who introduced a bill in January 2015 to amend the Act to prevent the

president from designating any monument without congressional approval. See Claire Moser, New

Congress Begins Anti-Environment Attack with ‘No More National Parks’ Bill, THINK PROGRESS (Jan.

16, 2016), http://thinkprogress.org/climate/2015/01/16/3612702/new-congress-no-more-national-parks-

bill/; see also the efforts of Rep. Rob Bishop (R-Utah), discussed infra note 285 and accompanying text.

In June 2016, the House Appropriations Committee approved an appropriation bill that would restrict

the President’s authority to designate national monuments. See Tiffany Stecker, Lawmakers Say

Spending Bill Rider Threatens Negotiations, E&E NEWS (June 16, 2016),

http://www.eenews.net/eedaily/2016/06/16/stories/1060038913. President Obama recently exercised his

Antiquities Act authority to designate three new national monuments in California in early 2016, putting

some 1.8 million acres of public lands into national monument status. See Mark Lander & Julie

Turkewitz, With 3 California Sites, Obama Nearly Doubles Public Land He’s Protected, N.Y. TIMES

(Feb. 12, 2016), http://www.nytimes.com/2016/02/13/us/obama-california-national-monument.html. In

the waning days of his tenure, Obama added Bear Ears (in Utah) and Gold Butte (Nevada) Monuments

and substantially expanded the Cascade Siskiyou Monument (in California and Oregon). See Nathan

Roth, Obama Designates Two New National Monuments in Nevada and Utah, NPR (Dec. 28, 2016),

http://www.npr.org/sections/thetwo-way/2016/12/28/507314596/obama-designates-two-new-national-

monuments-in-nevada-and-utah (describing the designations of Bear Ears and Gold Butte); see also

Obama Expands Cascade-Siskiyou National Monument, WASHINGTON TIMES (Jan. 12, 2017)

http://www.washingtontimes.com/news/2017/jan/12/obama-expands-cascade-siskiyou-national-

monument/. In all, Obama established or expanded 34 monuments, breaking the record of Franklin

Delano Roosevelt, who established or expanded 32 monuments.

192. 54 U.S.C. § 100101(a) (2012).

193. See About Us, NAT’L PARK SERV., http://www.nps.gov/aboutus/index.htm (last visited Mar.

9, 2016).

194. See Taft’s Withdrawal of Oil Land Upheld by Supreme Court Federal Judges Declare

Exceutive [sic] Orders Are Legal Because of Assent by Congress, Sacramento Union (Feb. 24, 1915),

https://cdnc.ucr.edu/cgi-bin/cdnc?a=d&d=SU19150224.2.20. Under the 1872 Mining Law, miners could

enter public land to prospect for mineral deposits. A discovery of a “valuable mineral” entitled them to

ownership of the minerals. See generally COGGINS & GLICKSMAN, supra note 182, § 42:4. After

discovery, the government would have had to “buy back” any oil on such claims, even if it had not been

extracted, until the Mineral Leasing Law of 1920 was passed to disqualify oil and gas from staking

claims. See id. § 39:2.

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808 ECOLOGY LAW QUARTERLY [Vol.43:781

obtain accounting of oil extracted after the withdrawal.

195

After the lower court

dismissed the suit, the government appealed to the Tenth Circuit, which

certified certain questions to the Supreme Court.

196

The Court upheld the oil

withdrawals in 1915 in United States v. Midwest Oil Company, citing

longstanding congressional acquiescence to executive-branch land

withdrawals.

197

Five years later, the Mineral Leasing Act of 1920 withdrew

fuel minerals like oil, gas, and coal from the 1872 law and authorized leasing,

with the federal government retaining title to the leased lands.

198

The Taylor Grazing Act of 1934

199

marked a major shift toward land

retention and conservation, effectively ending the disposition era.

200

In the

1920s and early 1930s, unreserved western lands suffered large-scale

degradation from excessive grazing and drought, prompting Congress to enact

the Taylor Act to “stop injury to the public grazing lands by preventing

overgrazing and soil deterioration [and] to provide for their orderly use,

improvement, and development.”

201

The statute reflected congressional

awareness of the unsustainability of unregulated grazing practices and

established the Grazing Service in the Interior Department, later combined with

the General Land Office to form BLM in 1946.

202

The federal government

proceeded to issue grazing permits on some 16 million acres of public lands

under ten-year leases from 1934 to 1968.

203

In the 1960s, new BLM

regulations recognized a “multiple-use management” policy.

204

This policy

committed BLM to more active management, but Congress did not

permanently codify multiple-use management

205

until the enactment of the

195. The controversy over the oil land withdrawals led Congress to pass the Pickett Act of 1910

giving the President authority to withdraw lands for “public purposes to be specified in the orders of

withdrawals.” Pickett Act of 1910, ch. 421, 36 Stat. 847 (1910). The Pickett Act contained an exception

for “metalliferous” substances. See Getches, supra note 182, at 294.

196. See United States v. Midwest Oil Co., 236 U.S. 459, 468 (1915).

197. Id. at 469–71.

198. Mineral Leasing Act of 1920, ch. 85, 41 Stat. 437 (codified as amended at 30 U.S.C. §§ 181,

201–263 (2012)). See COGGINS & GLICKSMAN, supra note 182, §§ 39:2, 42:7. Under the Act, the federal

lessor benefits from payments of rents, bonus bids, and royalties. § 17, 41 Stat. at 443. The Act also

contained several conservation measures; for example, (1) prohibiting the filling of a well within 200

feet of the exterior boundary of the permitted or leased area, and (2) requiring each lease to be

conditioned on prevention of waste of oil or gas. § 16, 41 Stat. at 443.

199. Ch. 865, 48 Stat. 1269.

200. See COGGINS ET AL., supra note 16, at 96.

201. See The Taylor Grazing Act, BUREAU OF LAND MGMT., http://www.blm.gov/wy/st/en/

field_offices/Casper/range/taylor.print.html (last visited Mar. 12, 2012).

202. See COGGINS ET AL., supra note 16, at 26.

203. See BUREAU OF LAND MGMT., supra note 201.

204. See id. Multiple use management had been a hallmark of the Forest Service from its

inception, later codified by Congress in the Multiple-Use Sustained-Yield Act of 1960, Pub. L. No. 86-

517, 74 Stat. 215 (1960).

205. See U.S. DEPT. OF THE INTERIOR, FINAL ENVIRONMENTAL STATEMENT FEDERAL COAL

MANAGEMENT PROGRAM 5-207 (1979). Congress enacted a temporary multiple-use directive for BLM

in the Classification and Multiple-Use Act of 1964, Pub. L. No. 88-607, 78 Stat. 986 (1964).

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Federal Land Policy and Management Act of 1976 (FLPMA),

206

which made

permanent BLM’s multiple-use directives and established comprehensive

planning as the chief characteristic of BLM land management.

Congress enacted FLPMA after a lengthy process initiated by completion

of the Public Land Law Review Commission’s final report in 1970.

207

FLPMA

articulated BLM’s management responsibilities

208

and established the

fundamental policy that:

[T]he public lands be managed in a manner that will protect the quality of

scientific, scenic, historical, ecological, environmental, air and

atmospheric, water resource, and archeological values; that, where

appropriate, will preserve and protect certain public lands in their natural

condition; that will provide food and habitat for fish and wildlife. . . .

209

FLPMA granted broad authority to BLM to manage public lands,

formalized multiple-use, sustained yield management, and established

environmental protection as a purpose of public-land management.

210

The

statute expressly recognized the priority of protecting lands with high

environmental value for public benefit.

211

With the enactment of FLPMA, Congress largely completed a

comprehensive framework to conserve and manage resources on public lands to

preserve parks, forests, grazing lands, and surface and subsurface resources.

212

Federal management of public lands for the benefit of the people is thus a well-

settled national policy, a reflection of the overwhelmingly shared concern for

the protection and sound management of publicly-owned lands and natural

resources. The Supreme Court, Congress, and the Executive Branch all have

clearly and broadly interpreted the power to manage federal lands under the

Property Clause.

206. Federal Land Policy and Management Act of 1976, PL 94–579, 90 Stat 2743 (1976) (codified

as amended at 43 U.S.C. §§ 1701–1785 (2012)).

207. PUBLIC LAND LAW REVIEW COMM’N, ONE THIRD OF THE NATION’S LAND: A REPORT TO THE

PRESIDENT AND TO THE CONGRESS (1970), https://ia802703.us.archive.org/10/items/onethirdofnation

3431unit/onethirdofnation3431unit.pdf.

208. FLPMA is sometimes referred as the BLM Organic Act. See The Federal Land Policy and

Management Act (FLPMA) of 1976: How the Stage Was Set for BLM’s “Organic Act”, BUREAU OF

LAND MGMT., http://www.blm.gov/flpma/organic.htm (last visited Mar. 31, 2016).

209. FLPMA § 102 (codified at 43 U.S.C. § 1701(a)(8) (2012).

210. See BUREAU OF LAND MGMT., supra note 208. FLPMA required BLM to prevent

unnecessary or undue degradation of public lands, § 302 (codified as amended at 43 U.S.C. § 1732(b)),

and called for designation of wilderness study areas, § 603 (codified as amended at 43 U.S.C. § 1782).

211. FLPMA gave priority to BLM’s designation of “areas of critical environmental concern.” §

201 (codified at 43 U.S.C. § 1711(a)).

212. Congress added to this framework the National Wildlife Refuge System Improvement Act of

1997, Pub. L. No. 105-57, 111 Stat. 1252 (codified as amended at 16 U.S.C. § 668dd–668ee (2012)),

establishing a statutory goal of conserving national wildlife refuges and defined conservation in

ecological terms. See Robert L. Fischman, The Significance of National Wildlife Refuges in the

Development of U.S. Conservation Policy, 21 J. OF LAND USE & ENVTL. L. 1, 16 (2005). The statute

aimed to establish a national system of refuges, calling for the preservation of biodiversity as a

management goal, while recognizing hunting as a second-priority recreational use. See id.

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810 ECOLOGY LAW QUARTERLY [Vol.43:781

III. THE DISCONTENTS’ LEGAL CLAIMS

The anti-environmental movement called the “Sagebrush Rebellion”

began in the 1970s, mostly growing out of unhappiness among grazers and

some states with the decision in NRDC v. Morton.

213

That decision ordered

BLM to prepare Environmental Impact Statements (EISs) on its land-use plans,

which threatened grazing restrictions.

214

The then-director of the Utah BLM

office predicted in 1980 that the legal uncertainty caused by the rebellion would

“bring all actions on public lands to a halt for ten years.”

215

When the Reagan

Administration (led by a self-proclaimed sagebrush rebel) took office, newly

appointed Interior Secretary James Watt questioned the science underlying the

EISs and stated that he would always “err on the side of public use versus

preservation.”

216

He refused to accept any grazing restrictions based on the

EISs, a position upheld in NRDC v. Hodel, which approved a BLM land plan

that largely ignored the need to improve degraded public rangeland through

grazing restrictions.

217

As a result, there was no definitive legal ruling on the

rebels’ claims that the federal government lacked authority to cut back grazing,

although the decisions in Kleppe v. New Mexico

218

(on the scope of the

Property Clause power) and in Arizona v. California

219

(limiting the equal-

footing doctrine to submerged lands beneath navigable-in-fact waters at the

time of statehood) put the handwriting on the wall concerning those types of

claims.

The rebellion against federal authority resurfaced in the 1990s when

Interior Secretary Bruce Babbitt (from a ranching family) announced his

“rangeland reform” program, which called for more environmentally sensitive

public-land grazing.

220

Grazers responded by filing suit in federal district court

213. 388 F. Supp. 829 (D.D.C. 1974). On the origins and goals of the Sagebrush Rebellion, see

generally John D. Leshy, Unraveling the Sagebrush Rebellion: Law, Politics, and Federal Lands, 14

U.C. DAVIS L. REV. 317 (1980).

214. See Jonathan Thompson, The First Sagebrush Rebellion: What Sparked It and How It Ended,

HIGH COUNTRY NEWS (Jan. 14, 2016), http://www.hcn.org/articles/a-look-back-at-the-first-sagebrush-

rebellion.

215. See Marjane Ambler, The Sagebrush Rebellion: Misdirected Dynamite, HIGH COUNTRY

NEWS 2 (Feb. 22, 1980), http://s3.amazonaws.com/hcn-media/archive-pdf/1980_02_22.pdf. Although

the Sagebrush Rebellion mostly focused on suing the federal government and on legislative efforts, the

movement built the foundations for the Bundys to act in a more “physical” manner.

216. See George C. Coggins & Doris K. Nagel, “Nothing Beside Remains”: The Legal Legacy of

James G. Watt’s Tenure as Secretary of the Interior on Federal Land Law and Policy, 17 B. C. ENVTL.

AFF. L. REV. 473, 489 (1989). Watt also described his mission as to “fight in the courts those

bureaucrats and no-growth advocates who create a challenge to individual liberty and economic

freedoms.” Elizabeth Drew, Reporter at Large: Secretary Watt, NEW YORKER, May 4, 1981, at 108.

217. 624 F. Supp. 1045 (D. Nev. 1985) (holding that BLM did not violate NEPA by choosing an

action before preparing an EIS), aff’d, 819 F.2d 927 (9th Cir. 1987).

218. 426 U.S. 529 (1976); see supra notes 164–171 and accompanying text.

219. 373 U.S. 546 (1963); see supra note 63 and accompanying text.

220. See Pub. Lands Council v. Babbitt, 529 U.S. 728, 750 (2000) (unanimously upholding various

provisions of Secretary Babbitt’s rangeland reform program). See generally Scott Nicholl, The Death of

Rangeland Reform, 21 J. ENVTL. L. & LIT. 47 (2006).

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in Nevada, arguing that the federal government lost title to lands of the state

when Nevada joined the Union.

221

The grazers also argued that federal

ownership of 80 percent of land within the state unconstitutionally infringed on

the state’s police powers and violated the equal-footing doctrine by putting the

state at an economic disadvantage compared to other states.

222

But the grazers’

equal footing, Tenth Amendment, and Statehood Act claims failed in the Ninth

Circuit.

223

Undaunted, the grazers and the states have advanced new legal

theories, none of which has succeeded, as we explain below.

A. State Water Rights as a Limit on Federal Land Use Discretion

Western public-lands ranchers advanced another theory that their state

water rights on federal lands provide them with implied easements to graze on

public lands so their cattle can access the water. Although the argument has met

with some success in the lower courts, appellate courts have consistently

rejected it.

224

The latest judicial rejection occurred early in 2016 when the Ninth Circuit

ruled in favor of the government against the estate of the late rancher Wayne

Hage in a trespass case.

225

Hage and his son held a federal grazing permit until

1993, but failed to renew it properly.

226

When they continued to graze cattle on

federal lands, the federal government sued in trespass.

227

The district court

ruled for the Hages, concluding that their state water rights gave them an

easement by necessity for their cows to access the water on public lands.

228

The Ninth Circuit summarily reversed,

229

holding that “the ownership of

water rights has no effect on the requirement that a rancher obtain a grazing

permit.”

230

The court relied on case law from both federal and Nevada state

courts in determining that “water rights do not include, as a matter of state law,

221. United States v. Gardner, 107 F.3d 1314, 1317 (9th Cir. 1997).

222. Id. at 1318–19.

223. See id. (declaring that equal footing does not give the states title to the public lands within

their boundaries; instead, it conveys to the states only lands submerged beneath navigable-in-fact waters

at statehood).

224. See Hunter v. United States, 388 F.2d 148, 154 (9th Cir. 1967) (holding that ownership of

water rights implies a right-of-way on public lands but only for diversionary purposes); Diamond Bar

Cattle Co. v. United States, 168 F.3d 1209, 1214–15 (10th Cir. 1999) (rejecting ranchers’ argument that

state water rights gives them an appurtenant right to graze on federal lands); Colvin Cattle Co. v. United

States, 468 F.3d 803, 807–08 (Fed. Cir. 2006) (rejecting the argument that a federal land grazing right is

inherent in a state water right).

225. United States v. Estate of Hage, 810 F.3d 712 (9th Cir. 2016).

226. Id. at 715.

227. Id.

228. See id.

229. Sean Whaley, Nevada Ranching Family Loses Federal Lands Court Case, LAS VEGAS REV.-

J. (Jan. 18, 2016), http://www.reviewjournal.com/news/nevada/nevada-ranching-family-loses-federal-

lands-court-case. The court also took the unusual step of granting the federal government’s request that

the appeals court remove the district judge from the case, as he had demonstrated hostility to federal

officials, citing them for contempt. Estate of Hage, 810 F.3d at 715.

230. Estate of Hage, 810 F.3d at 717.

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812 ECOLOGY LAW QUARTERLY [Vol.43:781

an implicit, appurtenant grazing right on federal lands,” because the Taylor

Grazing Act preempted any such state rights.

231

Both the Ninth and Tenth

Circuits have now clearly rejected the argument that water rights perfected

under state law entitle ranchers to graze their cattle on federal land adjacent to a

water source.

232

B. Public Grass as a Private Property Right

Ranchers have also argued for a kind of “labor theory of grass.”

233

They

maintain that, because their families have been grazing on public lands for a

long period of time, they acquired rights to the grass on those lands, even

though the Taylor Act clearly stipulated that federal grazing permits gave them

“no right, title, or interest” in public lands.

234

The grazers’ argument resembles

the common-law doctrine of accession, which, according to a nearly century-

old account, “comprehends the case of one who by his labor and skill, has

created a new product out of another’s article.”

235

Their claim would be based

on their cultivation of public land grass, which allegedly provides the dominant

value of the lands. But accession law is premised on private land ownership,

not land owned by the sovereign.

236

Moreover, it is hardly clear that the chief

value of the public rangelands is grass devoted to livestock grazing, not the

wildlife and watershed values that grazing damages.

The grazer’s argument also founders on the fact that they have no

ownership to the land on which the grass grows, and the federal statute

authorizing their permits expressly denies them land rights.

237

Courts have not

yet had the opportunity to consider the grazers’ “grass ownership” argument,

but they may soon. Using the accession-related common-law doctrine of

emblements,

238

the grazers might argue that the grass is a crop that they

nurtured as tenants of a federal grazing permit, and that even after the

termination of a lease, they are entitled to the value of the grass they

231. Id. at 719 (relying on Colvin Cattle Co. v. United States, 468 F.3d 803, 807–08 (Fed. Cir.

2006) and Ansolabehere v. Laborde, 310 P.2d 842, 849–50 (Nev. 1957)).

232. Hage’s estate has appealed the Ninth Circuit’s decision to the Supreme Court. See Juan Carlos

Rodriguez, Ranchers Seek 9th Circ. Stay of Grazing Trespass Ruling, LAW360 (Apr. 20, 2016),

http://www.law360.com/articles/787055/ranchers-seek-9th-circ-stay-of-grazing-trespass-ruling.

233. See JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT § 27, 17 (Thomas P. Reardon ed.,

Liberal Arts Press 1952) (reasoning that “every man has a property in his own person . . . . The labor of

his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of

the state that Nature has provided, and left it in, he has mixed his labor with, and joined to it something

that is his own, and thereby makes it his property.”).

234. Ch. 865, § 3, 48 Stat. 1269, 1270 (1934) (codified at 43 U.S.C. § 315b (2012)).

235. See, e.g., Earl C. Arnold, The Law of Accession of Personal Property, 22 COLUM. L. REV.

103 (1922).

236. See Thomas W. Merrill, Accession and Ownership, 1 J. LEGAL ANALYSIS 459, 465 (2009).

237. See supra note 234 and accompanying text.

238. See Merrill, supra note 236, at 465.

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produced.

239

However, the doctrine of emblements applies only to indefinite

lease terms,

240

which federal grazing permits do not have. Moreover, the

grazers could, at best, obtain a remedy equaling the value of one season of

grass.

The grazers might also analogize their grass-ownership argument to what

the Supreme Court once referred to as “constituent elements of the land,”

concerning claims to minerals and timber in connection with an Indian

reservation in United States v. Shoshone Tribe of Indians.

241

In that case, the

tribe sought compensation from the federal government for settling a different

tribe on part of the reservation in violation of its treaty. The government

acknowledged that it owed the Shoshone Tribe compensation but claimed the

valuation should not include the value of the land’s timber and minerals.

242

The

Court ruled against the government because it had it assured the tribe

“peaceable and unqualified possession of the land in perpetuity,” which

implicitly included minerals and timber as constituent elements of the land;

otherwise, the reservation would transfer little in the way of beneficial

interest.

243

But the government made no similar promise to public-land grazers; in

fact, it clearly stated that grazing permits were at the discretion of the federal

government.

244

Moreover, the Indian law rule of construing agreements with

the government in favor of the tribes

245

does not apply to the public-land

grazing context, where a contrary interpretative rule favors the federal

government in disputes with its grantees.

246

Finally, ranchers were never the

beneficiaries of a land reservation held by the government as a trustee for them,

as is the case with tribes.

247

The federal government is not a trustee for public-

239. In the agricultural context of accession the common-law doctrine of emblements protects a

tenant’s right to harvest annual crops, provided the lease term is for an indefinite period. See Reeder v.

Sayre, 70 N.Y. 180 (1877) (recognizing the doctrine). If a tenant plants a crop, and the landowner

terminates his lease not due to tenant wrongdoing, the tenant can invoke the doctrine of emblements to

harvest the crop even after the termination of the lease. See Richard D. Boyle, Tenant Ownership Rights

to Crops and Improvements on Leased Property, http://www.scolaro.com/wp-content/uploads/Tenant-

Ownership-Rights-to-Crops-and-Improvements-on-Leased-Property.pdf (last visited Nov. 15, 2016).

240. See Jacob H. Rottkamp & Son, Inc. v. Wulforst Farms, LLC, 844 N.Y.S.2d 600 (Sup. Ct.

2007). The doctrine of emblements applies to annual crops only, not perennial crops, which are

considered part of the realty. See, e.g., Benson v. Morse, 109 N.Y.S.2d 57 (Sup. Ct. 1951).

241. 304 U.S. 111 (1938).

242. Id. at 116.

243. Id.

244. 43 U.S.C. § 315b (2012).

245. See COHEN’S HANDBOOK ON FEDERAL INDIAN LAW § 2.02[1] (Nell Jessup Newton, et al.,

eds. 2012) [hereinafter COHEN HANDBOOK]; Richard B. Collins, Never Construed to Their Prejudice: In

Honor of David Getches, 84 U. COLO. L. REV. 1, 5–6 (2013).

246. See United States v. Union Pac. R.R., 353 U.S. 112, 116 (1957) (applying the federal land law

canon resolving doubts concerning federal grants in favor of the federal government).

247. See COHEN HANDBOOK, supra note 245, at § 17.01.

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814 ECOLOGY LAW QUARTERLY [Vol.43:781

land grazers; on the contrary, it holds public lands in trust for the entire U.S.

public.

248

C. The Enclave Clause as a Limit on Federal Lands

Krisanne Hall, speaking on behalf of the grazers, has advanced the novel

theory that the federal government’s authority to own land covers only ten

square-miles from Washington, D.C. under the Enclave Clause.

249

Her claim

overlooks more than a century of Enclave Clause case law, which has

uniformly interpreted the clause liberally.

250

For example, the Supreme Court

has interpreted the language “needful Buildings” in the clause to include

dams

251

and a national park.

252

The Enclave Clause has, moreover, never been interpreted to limit federal

authority under the Property Clause.

253

Eleven western state attorneys general

recently agreed that that the former does not limit the latter.

254

As discussed

above, the consistent judicial interpretation of the Property Clause is “without

limitation.”

255

D. The Supreme Court’s Alleged Misinterpretation of the Property Clause

Ammon Bundy adopted a somewhat different approach from Hall’s

judicial review argument in his defense in the Malheur Refuge case.

256

Although he acknowledged the judicial review power of the Supreme Court, he

argued that the federal government has no authority over that refuge, and that

248. See, e.g., Light v. United States, 220 U.S. 523, 537 (1911); Blumm & Schaffer, supra note 26,

at 421–22 (citing other case law).

249. U.S. Const. art. I, § 8, cl. 17: Congress may “exercise exclusive Legislation in all Cases

whatsoever over [the District of Columbia] 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.”

250. See, e.g., Fort Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885) (rejecting a claim that

Enclave Clause land—a military reservation in Kansas—was exempt from state taxation); Collins v.

Yosemite Park & Curry Co., 304 U.S. 518, 528 (1938) (finding that the Enclave Clause “has not been

strictly construed”); Virginia v. Reno, 955 F. Supp. 571 (E.D. Va. 1997), vacated for mootness by

122 F.3d 1060 (4th Cir. 1997) (holding that the Enclave Clause does not diminish federal power under

the Property Clause).

251. See James v. Dravo Contracting Co., 302 U.S. 134 (1937).

252. See Collins, 304 U.S. 518 (concerning Yosemite National Park).

253. See, e.g., Utah Power & Light Co. v. United States, 243 U.S. 389, 405 (1917) (rejecting the

utility’s argument that state law should apply to its dam on national forest land because the state had

never ceded the land, stating: “[T]he inclusion within a state of lands of the United States does not take

from Congress the power to control their occupancy and use, to protect them from trespass, and injury,

and to prescribe the conditions upon which others may obtain rights in them, even though this may

involve the exercise in some measure of what commonly is known as the police power.”). For a recent

interpretation, see Reno, 955 F. Supp. at 579–80 (holding that the Enclave Clause does not diminish

federal power under the Property Clause).

254. See supra note 66 (discussing the 2016 report of the Western Attorneys General).

255. See supra notes 123–131 and accompanying text.

256. See supra note 25.

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the Court’s two-hundred-year jurisprudence regarding the Property Clause

powers of the government should be overturned.

257

Bundy rejected the

extensive case law described above in Part II and argued that the Constitution

“only intended to give broad federal power of property in Territories, as the

Founders contemplated the expansion westward.”

258

Bundy’s argument relies on the use of “Territories” in the Enclave Clause,

rather than “territories” in the Property Clause.

259

He contends that

“Territories,” as a proper noun, reflected the Founders’ intent to recognize

federal power only over territorial lands that existed at the time of the drafting

of the Constitution.

260

Since Oregon was not a territory in 1787, Bundy claims

“once statehood occurred for Oregon, Congress lost the right to own the land

inside the state,” except for purposes of the Enclave Clause.

261

Bundy’s contention that “Territories” versus “territories” or “lands” has

constitutional significance was considered and rejected by the Supreme Court

176 years ago in United States v. Gratiot.

262

In 1840 the Court interpreted the

term “Territories” in the Property Clause as “equivalent to the word lands,”

263

meaning that the government has jurisdiction over all public lands, not just

those “Territories” that existed at the time of the drafting of the Property Clause

in 1787. In fact, Bundy’s reasoning echoes Justice Taney’s discredited analysis

of the Property Clause in Dred Scott—that Congress lacked the authority to

establish rules for federal territories in the West that were not part of the Union

at the time of the Constitution.

264

Thus, Bundy relies on the most reviled

decision in Supreme Court history as the only authority supporting his view.

265

257. See Lauren Fox, Bundy’s Extreme Legal Defense: Feds Have No Jurisdiction Over Federal

Lands, TPM (Apr. 25, 2016), http://talkingpointsmemo.com/muckraker/bundy-lawyer-expected-to-say-

malheur-was-not-fed-land. Bundy’s argument seemed self-contradictory. In his brief he acknowledged

that the federal government has “plenary power to manage, regulate, sell or dispose of public lands.” See

Defendant Ammon Bundy’s Motion to Dismiss for Lack of Subject Matter Jurisdiction at 6, United

Stated v. Bundy et al., No. 3:16-CR-00051 (D. Or. May 9, 2016) (No. 527). This concession implied that

the government may retain public lands indefinitely, especially in light of the Supreme Court’s

Jurisprudence that the power to manage public lands is “without limitation.” See supra notes 116, 123,

130, and accompanying text.

258. See Declaration of Defendant Ammon Bundy’s Unopposed Motion to Extend Deadline for

Motion to Dismiss for Lack of Jurisdiction at 2, United States v. Bundy et al., No. 3:16-CR-00051 (D.

Or. Apr. 22, 2016) (No. 453).

259. Id.

260. Id.

261. Id. at 2–3.

262. 39 U.S. 526, 537 (1840).

263. Id.

264. See supra note 116.

265. Justice Taney claimed that the Clause “does not speak of any territory, nor of Territories, but

uses language which, according to its legitimate meaning, points to a particular thing” to argue the term

“territory” could only refer to the area ceded by Virginia and New York and covered by the Northwest

Ordinance. Dred Scott v. Sandford, 60 U.S. 393, 436, 446–47 (1857) (emphasis in original); see also

Appel, supra note 25, at 46 (“Purely from an analysis of the legal reasoning, Taney’s opinion in Dred

Scott is disturbing. To reach his conclusion, Taney belittled the text of the Constitution and ignored or

misconstrued several key cases interpreting congressional power over the territories.”).

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816 ECOLOGY LAW QUARTERLY [Vol.43:781

Bundy’s argument also ignored the fact that the Supreme Court has

already upheld federal ownership of Malheur Refuge.

266

In United States v.

Oregon, the federal government sued the state to quiet title to submerged lands

underlying three lakes within the Lake Malheur Reservation, established by

executive order in 1908.

267

The Supreme Court upheld the executive order

establishing Lake Malheur as a bird reservation as within the authority of the

President.

268

The Court also decided that the lakebeds were federally owned,

directly contrary to Bundy’s argument that once Oregon joined the Union, the

government lost the power to manage public lands in the state.

269

Since the

lakes were non-navigable at the time of Oregon’s 1859 statehood, the state

never obtained title to the lakebeds under the equal-footing doctrine when it

joined the Union.

270

Consequently, Bundy’s argument was not only

inconsistent with nearly two centuries of jurisprudence, but also contradicted a

Supreme Court decision affirming federal ownership of Malheur Wildlife

Refuge.

E. Utah’s “Equal Sovereignty” and “Equal Footing” Claims

In connection with Utah’s TPLA, a New Orleans firm hired by the state

suggested that the state might have a valid claim under the so-called “equal

sovereignty” and “equal footing” principles.

271

The “equal sovereignty” idea is

essentially a restatement of political equal footing, which does not have a

proprietary dimension.

272

The law firm argued that FLPMA, by reversing

almost two hundred years of public-land policy “from one of disposal to one of

near permanent retention,” constituted an infringement on Utah’s sovereignty

as compared to states that have fewer federal lands within their borders.

273

The

firm suggested that the state might obtain a judicial declaration that the federal

government cannot forever retain the public lands within Utah’s borders.

274

266. United States v. Oregon, 295 U.S. 1 (1935).

267. See Establishing Lake Malheur Reservation in Oregon as Preserve and Breeding Ground for

Native Birds, Exec. Order No. 929 (1908). Malheur Lake is the principal reason for the refuges, as it

attracts birds along the Pacific Flyway.

268. Oregon, 295 U.S. at 10. The Court did so even though the reservation preceded the enactment

of the 1920 Migratory Bird Treaty Act. Id. at 9–10 (relying on the congressional acquiescence the Court

adopted in United States v. Midwest Oil Co., 236 U.S. 459, 469–75(1910)).

269. Oregon, 295 U.S. at 10.

270. See id. at 23–25.

271. See Wentz et al., supra note 24, at 2–3.

272. Id. at 2 (citing to Shelby County v. Holder, 133 S.Ct. 2612 (2012), which held that the Voting

Rights Act was unconstitutional under the Equal Sovereignty Principle because it treated states as

unequal in sovereignty). On political equal footing, see infra text following note 274.

273. Wentz et al., supra note 24, at 2.

274. Id. The New Orleans firm working for the state tried to support this claim under what it called

a “compact theory,” arguing that the Utah Enabling Act was an offer accepted by Utah, thus creating a

compact. This compact allegedly created an implicit duty for the U.S. government to timely dispose of

the public lands within Utah’s borders. Id. at 3–4. Bundy briefly mentioned this argument in its brief.

See Defendant Ammon Bundy’s Motion to Dismiss for Lack of Subject Matter Jurisdiction at 30, United

Stated v. Bundy et al., No. 3:16-CR-00051 (D. Or. May 9, 2016) (No. 527). Although the New Orleans

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The firm’s recommendation seems premised on the idea that “equal

sovereignty” requires more than equal political sovereignty. All states enjoy the

latter: two senators, proportionate representation in the House of

Representatives, and electoral votes equal to the congressional representatives.

This political representation separates states from territories like Puerto Rico

and the seat of the federal government in the District of Columbia. But political

equal sovereignty has never meant equal proprietary holdings. Given the

numerous allocation difficulties such an interpretation would raise, it is quite

unlikely that a court would reinterpret political sovereignty to include equal

proprietary ownership.

The Supreme Court has rejected expanding the scope of state equal-

footing claims many times. The Court’s 1845 decision in Pollard v. Hagan

decided that new states obtained ownership through an implicit federal transfer

of the beds of navigable waters at statehood.

275

But in subsequent decisions the

Court firmly declined to expand the doctrine to offshore submerged lands

276

and to lands above the high water mark.

277

Moreover, all of the western states

specifically disclaimed ownership of the federal public lands within their

boundaries in their statehood acts.

278

No court has ever suggested that these

disclaimers were unconstitutional or unenforceable.

279

The discontents’ legal claims therefore have little prospect of judicial

success. They may, however, have more success in the political arena, to which

we turn in the next Part.

IV. THE DISCONTENTS’ POLITICAL PROSPECTS

With little prospect of success in the courts, the discontents’ claims might

receive a more welcome reception in Congress, which has the constitutional

power to dispose of federal lands. This Part examines a bill advanced by

firm contended that the “compact theory” enjoyed “historical support,” the Utah Enabling Act actually

included a disclaimer of non-interference by the state. See infra note 319. The analysis cited no evidence

of “historical support” for continued disposition, and at the time of Utah statehood in 1896, the federal

government had already reserved Yellowstone and what would become Hot Springs National Parks, and

Congress had authorized the President to reserve forest lands. So, this argument—which amounts to

saying that a statehood act could restrain congressional authority under the Property Clause— actually

lacks “historical support.” The Western states attorneys general agree, see infra notes 301, 306.

275. 44 U.S. 212, 229 (1845) (finding ownership of navigable riverbeds necessary to give new

states equal footing with the original states).

276. United States v. California, 332 U.S. 19, 36 (1947) (“[W]e are not persuaded to transplant the

Pollard rule of ownership as an incident of state sovereignty in relation to inland waters out into the soil

beneath the ocean, so much more a matter of national concern”).

277. Arizona v. California, 373 U.S. 546, 597 (1963) (holding that Pollard and other cases

involved only the shores of and lands beneath navigable waters, and cannot be understood as limiting

the broad powers of the government under the Property Clause).

278. See Paul Conable, Comment, Equal Footing, County Supremacy, and the Western Public

Lands, 26 ENVTL. L 1263, 1271 (1996).

279. See, e.g., United States v. Gardner, 107 F.3d 1314, 1320 (9th Cir. 1997) (holding that the

disclaimer clause in Nevada’s statehood act is declaratory of the right already held by the United States

under the Constitution to administer its property, which is constitutional).

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818 ECOLOGY LAW QUARTERLY [Vol.43:781

Congressman Rob Bishop (R-Utah) that would authorize conveying public

lands from the federal government to the state of Utah.

280

The Part also

explains a new generation of local planning ordinances, which could fuel

further political debate concerning the ability of local governments to control

nearby federal lands.

A. Congressman Bishop’s “Grand Settlement” in Utah

Congressman Bishop has been pushing for a so-called “grand settlement”

between Utah’s environmental groups, which wish to expand wilderness areas

in the state, and oil and gas interests, which seek to open federal lands for

fossil-fuel production.

281

Bishop’s proposal resulted from negotiations among

local and national environmental groups, recreationalists, tribes, ranchers, oil

and gas companies, and county commissioners over lands in eastern Utah.

282

January 2016, Bishop unveiled a draft bill that would designate a total of 4.3

million acres of new wilderness and national conservation areas, as well as 301

new miles of wild and scenic rivers.

283

The bill would also authorize the

transfer of some federal land to the state and designate other BLM lands as

priority areas for oil and gas development, grazing, and motorized vehicle

use.

284

Although the Western Energy Alliance (representing some 450 oil and

gas companies) called the bill an “important milestone,” environmental groups

described the bill as worse than the status quo because it contained many

loopholes allowing activities usually prohibited in wilderness areas and

wilderness study areas.

285

The Bishop bill would also curb the authority of the President to designate

national monuments under the Antiquities Act without congressional

approval,

286

a provision that likely would have engendered an Obama veto.

287

280. See Krista Langlois, Bishop’s ‘Grand Bargain’ in Utah Is No Deal, Say Enviros, HIGH

COUNTRY NEWS (Feb. 22, 2016), https://www.hcn.org/issues/48.3/the-failed-compromises-of-rep-rob-

bishops-public-lands-masterplan.

281. See Greg Hanscom, New Route to End Utah’s Wilderness Stalemate, HIGH COUNTRY NEWS

(July 29, 2013), https://www.hcn.org/issues/45.12/eastern-utahs-wilderness-stalemate?b_start:int/=0#

body.

282. See Langlois, supra note 280.

283. See id.

284. See Draft Bill to Provide Greater Certainty and Local Management of Federal Land Use in

Utah, and for Other Purposes, Title XI, § 1101 (Jan. 20, 2015), http://robbishop.house.gov/

uploadedfiles/discussion_draft_20jan16.pdf.

285. The bill would sanction motorized equipment and authorize new water-storage facilities in

new wilderness areas. It would also allow the state to conduct predator control, including aerial

shooting, and would forbid land managers from reducing livestock numbers as a response to drought.

See Langlois, supra note 280.

286. Title XIII of the draft bill, entitled “Long-Term Land Use Certainty,” was left blank, expected

to host the provision limiting the president’s powers under the Antiquities Act. Bishop warned President

Obama at a hearing with the White House’s Director of the Council on Environmental Quality that

“[t]he broad and frequent application of the Antiquities Act raises questions about the lack of

transparency and consultation with local stakeholders.” See Michael Lehr, Public Land Fight in Utah:

Will the President Designate Bears Ears a National Monument, COLUM. J. OF ENVTL. L.: FIELD

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2016] THE PROPERTY CLAUSE AND ITS DISCONTENTS 819

This attempt at a “grand bargain”—trading modified wilderness designations

for state control of oil and gas development—may gain political support in the

wake of the 2016 election that united all branches of the federal government

under Republican control.

288

B. Local Land Planning Ordinances

Local governments can have an important effect on public-land

management. The National Forest Management Act (NFMA) and FLPMA both

call for coordination of state and local plans in federal land plans.

289

Some

local ordinances have interpreted the term “coordination” to mean government-

to-government negotiations on virtually all land uses.

290

However, local

governments have long assumed that federal-land management was outside the

scope of community concern.

291

Recently, however, the American Legislative

Exchange Council (ALEC) has drafted local ordinances challenging federal

control of public lands in the West.

292

Encouraged by ALEC, some local

REPORTS 7 (May 5, 2016), http://www.columbiaenvironmentallaw.org/872-2/. The House Appropriation

Committee’s bill sent to the House that restricts the President’s authority to designate national

monuments was mainly motivated by a desire to prevent designation of Bears Ears as a national

monument. See Stecker, supra note 191.

287. See Langlois, supra note 280.

288. See id.; see also supra note 15 (discussing the 2016 Republican Party Platform); but see Kate

Sheppard, Sorry Republicans, Donald Trump Doesn’t Want to Sell Off Public Lands, Huffington Post

(July 21, 2016, 2:54 PM), http://www.huffingtonpost.com/entry/cramer-trump-public-lands_us_

57910d96e4b0bdddc4d393b3.

289. Under NFMA, the Forest Service must “develop, maintain, and, as appropriate, revise land

and resource management plans for units of the National Forest System, coordinated with the land and

resource management planning processes of State and local governments and other Federal agencies.”

16 U.S.C. § 1604(a) (2012). FLPMA requires the Interior Secretary “to the extent consistent with the

laws governing the administration of the public lands, [to] coordinate the land use inventory, planning,

and management activities of or for such lands with . . . local governments within which the lands are

located.” 43 U.S.C. § 1712(c)(9) (2012).

290. See, e.g., PUBLIC LANDS COUNCIL, HARNEY COUNTY’S BEGINNER’S GUIDE TO

COORDINATION 5 (Sept. 2012), http://www.co.harney.or.us/PDF_Files/County%20Court/public%20land

%20issues/Coordination%20Handbook%20-%20Public%20Lands%20Council%20-%202012.pdf.

291. See Michelle Bryan, Learning Both Directions: How Better Federal-Local Land Use

Collaboration Can Quiet the Call for Federal Lands Transfers, 76 MONT. L. REV 147, 148 (2015).

292. See Brendan Fischer, Rep. Grijalva Demands Federal Investigation into ALEC’s Role in Neo-

Sagebrush Rebellion, PRWATCH (Apr. 16, 2014), http://www.prwatch.org/news/2014/04/12451/

congressman-grijalva-requests-investigation-alecs-role-nv-range-fight; ALEC, Resolution Demanding

That Congress Convey Title of Federal Public Lands to the States, (Jan. 28, 2013),

https://www.alec.org/model-policy/resolution-demanding-that-congress-convey-title-of-federal-public-

lands-to-the-states/. ALEC bills fit into a broader pattern developing in the West: “Utah comes up with

these ideas, passes them into law through their legislature, and through the ALEC network, [legislators]

try and pass them in other states.”

See Lyndsey Gilpin, How an East Coast Think Tank Is Fueling the

Land Transfer Movement, HIGH COUNTRY NEWS (Feb. 26, 2016), https://www.hcn.org/articles/how-an-

east-coast-think-tank-is-fueling-the-land-transfer-movement (quoting Greg Zimmerman, the policy

director for the Center for Western Priorities).

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governments have enacted ordinances in an effort to obtain greater control over

federal public-land management.

293

Although these sorts of local ordinances might not be enforceable,

294

they

could inspire amendments to NFMA and FLPMA to make them enforceable.

When federal agencies’ decisions seem arbitrary to local populations, the

agencies may influence local governments to oppose federal-land planning and

regulation, and push for local ordinances to interfere with federal planning. The

feeling of distrust toward the federal government is catalyzed by the fact that

the decisions of a distant entity regarding wildlife protection, watershed

conservation, and management of other natural resources can affect the grazer’s

ability to manage land to which they feel entitled.

295

Local visions of the public

interest in public-land management will likely reflect the heavy influence that

extractive industries can bring to bear on local communities due to the creation

of local employment and contributions to both local taxes and campaign

expenditures of local politicians.

296

Although that vision would not be

consistent with national perception of the public interest, as reflected in statutes

like NFMA and FLPMA, local plans could influence Congress to change those

statutes. Prospects for success here seem much more likely than in any court

action.

CONCLUSION

The Malheur Refuge was an odd place for revolt against public-land

management because the local population generally accepted the refuge

management plan, evidenced by the fact that there was no appeal filed after the

plan’s promulgation.

297

In fact, most of the occupiers of the wildlife refuge did

not even come from Oregon.

298

Yet, the Bundys seized the opportunity

presented by the sentencing of two local ranchers to obtain publicity for their

293. See, e.g., BAKER COUNTY, OR., NATURAL RESOURCES PLAN (2015); see also Bryan, supra

note 291, at 149 (arguing that the growing involvement of the local communities is the product of a lack

of collaboration and inconsistent federal agency policies).

294. See Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 589 (1987) (deciding that state

environmental protection laws were enforceable on federal lands but state land use laws were not).

295. See Jes Burns & Tony Schick, Before Oregon’s Armed Takeover, a Long-brewing Dispute

Over Rangeland Health, PBS NEWSHOUR (Jan. 7, 2016), http://www.pbs.org/newshour/updates/what-is-

environmental-health-and-why-did-it-trigger-oregons-armed-takeover/; see also COGGINS &

GLICKSMAN, supra note 182, at § 1:23.

296. See Bruce Finley, Collapse of Colorado Coal Industry Leaves Mining Towns Unsure What’s

Next, DENVER POST (May 14, 2016), http://www.denverpost.com/2016/05/14/collapse-of-colorado-coal-

industry-leaves-mining-towns-unsure-whats-next/.

297. See U.S. FISH & WILDLIFE SERV., MALHEUR NATIONAL WILDLIFE REFUGE COMPREHENSIVE

CONSERVATION PLAN: EXECUTIVE SUMMARY 1, https://www.fws.gov/uploadedFiles/Region_1/NWRS/

Zone_2/Malheur/Documents/MalheurNWR_FCCP_Exec_Sum.pdf. See supra note 76 and

accompanying text.

298. Bryan M. Vance, Faces of the Malheur Refuge Occupation Trial, OPB NEWS (Sept. 1, 2016),

http://www.opb.org/news/series/burns-oregon-standoff-bundy-militia-news-updates/820regon820-

refuge-occupation-defendants-trial-status-criminal-case/.

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cause.

299

Although Malheur was not the first confrontation of this kind, its

length and violence (including the death of one protester) raise broader

concerns in the fight opposing federal agencies’ efforts to protect and restore

areas of federal public lands for their recreational and ecological values.

300

The Malheur occupation represents only the latest of a long history of

unsuccessful opposition against the Constitution’s Property Clause.

301

This

opposition is not surprising given the deep feeling of distrust among some

westerners towards the federal government, a distant entity making decisions

affecting highly interested locals who usually favor commodity production over

water quality, wildlife habitat, and natural resource preservation.

302

The tension between these two competing interests—local interests versus

national interests—can now quickly escalate into highly mediatized armed

conflicts like the Malheur Refuge, due in large part to the outsized influence of

social media.

303

However, discontents like the Bundys are misguided about the

legal merits of their opposition.

304

Although some of those involved in the

Malheur occupation may still serve prison time,

305

sympathizers of the Bundy

cause may have better prospects in the political arena, as Congress has broad

powers to dispose of public lands under two hundred years of consistent

Property Clause jurisprudence.

306

299. See supra note 2.

300. See Les Zaitz, Oregon Standoff Spokesman Robert ‘LaVoy’ Finicum Killed, Bundys in

Custody After Shooting Near Burns, OREGONIAN (Jan. 26, 2016), http://www.oregonlive.com/821regon-

standoff/2016/01/bundys_in_custody_one_militant.html.

301. Utah’s latest effort to take public lands away from the federal government also seems ill

founded, as eleven attorneys general, including the Republican attorney general from Utah, recently

concluded that “Congress may retain ownership of public lands indefinitely.” ATTORNEY GENERAL’S

REPORT, supra note 66, at 16. The same report also found that the Enclave Clause did not limit the

scope of the Property Clause, id. at 2, 17–21, and that neither the equal footing nor the so-called equal

sovereignty doctrines required federal conveyance of public lands to the states. Id. at 2–3, 22–47.

302. See Burns & Schick, supra note 295; see also COGGINS & GLICKSMAN, supra note 182, at §

1:23. The Bundy standoff seems to have emboldened other discontents to take action, although they

remain unsuccessful. See Tay Wiles, Malheur Occupation Impacts Linger Throughout the West, HIGH

COUNTRY NEWS (Oct. 4, 2016), http://www.hcn.org/articles/ammon-bundy-malheur-standoff-effects-

sagebrush-rebellion (reporting on similar conflicts in New Mexico, Utah, Idaho, and Nevada).

303. See Bever, supra note 9.

304. See supra Part III. Although a jury eventually acquitted seven defendants involved in the

Malheur occupation, this decision does not alter the legal analysis in this Article. But the decision may

reflect the political prospects of the discontents. See infra Postscript.

305. Although as the postscript to this Article indicates, Ammon Bundy and six other defendants

surprisingly were acquitted of a federal conspiracy charge in late 2016, others still face charges and will

go to trial in early 2017. Others pleaded guilty prior to the Bundy trial. See Courtney Sherwood & Kirk

Johnson, Bundy Brothers Acquitted in Takeover of Oregon Wildlife Refuge, N.Y. TIMES (Oct. 27, 2016),

https://www.nytimes.com/2016/10/28/us/bundy-brothers-acquitted-in-takeover-of-oregon-wildlife-

refuge.html?_r=0.

306. See supra Part II. This broad authority was recently recognized in the report by eleven

western attorneys general. See ATTORNEY GENERAL’S REPORT, supra note 66, at 4–21 (concluding the

Property Clause empowers the federal government to indefinitely retain public lands in federal

ownership, and that the Enclave Clause imposes no limits on the Property Clause).

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822 ECOLOGY LAW QUARTERLY [Vol.43:781

Because federal lands have always been central to Americans’ vision of

their identity,

307

Congress and the President should exercise great caution in

any reform of public-land-management policies.

308

Divestiture would radically

change public-land law—even the Western states attorney generals agree

309

—

and is inconsistent with its long history of anti-monopoly policy,

310

and it

would surely engender great opposition and litigation.

311

The Malheur Refuge standoff might not be the last of its kind in Oregon.

One might think of Justice Oliver Wendell Holmes’s insight about possession

sinking into one’s being, the so-called “endowment effect” (or divestiture

aversion).

312

This seems especially characteristic of the psychology of grazers

who have used federal lands for generations, even without any recognized land

ownership rights.

In any event, the disturbing confrontation that took place at the Malheur

Refuge shed light on an alleged lack of communication between federal

agencies and local populations. If more federal-local coordination is necessary,

armed insurrection by opportunistic ranchers like the Bundys, taking advantage

of a mediatized event to advance their personal agendas, is hardly the vehicle to

produce it. Nor is wholesale conveyance of federal lands, a position adopted by

the 2016 Republican Party platform.

313

Gifting land to states that cannot afford

the burden of managing federal lands could lead to the privatization of a

common heritage possessed by all Americans.

314

Improved cooperation

307. Public-lands retention was the great achievement of the Progressive Conservation Era. The

national park system the Progressives inaugurated is not only among the most popular federal programs

(although federal land reservations antedated the Progressives, reaching back to pre-constitutional

America, see supra note 118), it is also quite central to Americans’ vision of themselves. See, e.g.,

PETER COATES, NATURE: WESTERN ATTITUDES SINCE ANCIENT TIMES 108 (1998):

Nature was a vital cohesive force in a country that lacked the glue of ethnic, religious and

racial homogeneity. Reinforcing the shared commitment to republicanism, democracy and

free enterprise, a literal sense of common ground could mitigate the centrifugal tendencies of

heterogeneity. The fabled frontier thesis of Frederick Jackson Turner (1893), which rooted

American culture, character and intellect firmly in the unmodified nature that colonists

encountered on the frontier, represented the culmination of a way of thinking about nature as

a moral quality imbued with a redemptive virtue that rubbed off almost magically on those

who came into contact with it, metamorphosing Europeans into Americans.

308. See Spencer Sunshine, Gunning for Office: Oregon’s Patriot Movement and the May 2016

Primary, POL. RES. (Apr. 19, 2016), http://www.politicalresearch.org/2016/04/19/gunning-for-office-

oregons-patriot-movement-and-the-may-2016-primary/#sthash.kjJcBnVe.ryrI9rNI.dpbs.

309. See supra notes 66, 301, 306 and accompanying text.

310. See Blumm & Tebeau, supra note 29.

311. There might be limits imposed on the federal Property Clause power by the public trust

doctrine, assuming it constrains the federal government. See Blumm & Schaffer, supra note 26.

312. Oliver Wendell Holmes, The Path of Law, 10 HARV. L. REV. 457, 477 (1897) (“It is in the

nature of man’s mind. A thing which you have enjoyed and used as your own for a long time, whether

property or an opinion, takes root in your being and cannot be torn away without your resenting the act

and trying to defend yourself, however you came by it.”).

313. See supra note 15 and accompanying text.

314. See Leslie Weldon, Deputy Chief, Nat’l Forest Sys., A Precious Heritage: Speech to the

American Wildlife Conservation Partners Meeting (Mar. 10, 2015), http://www.fs.fed.us/

speeches/precious-heritage.

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2016] THE PROPERTY CLAUSE AND ITS DISCONTENTS 823

between federal-land managers and local communities obviously would

promote a better means of addressing local concerns than the Bundys’ violent

insurrection.

Both of the major land-management statutes—FLPMA and NFMA—

require the federal agencies to coordinate with states and local governments.

315

States and localities are more likely now than in the past to seek to enforce

those provisions. Some localities are even preparing land plans for federal lands

in their vicinity.

316

Although limits exist as to what local plans can

accomplish,

317

they will doubtless achieve more than the Bundys’ clumsy

effort at constitutional revolution.

In a larger sense, the Bundy occupation reflects a conflict between

concepts of land ownership and usufructuary rights,

318

which only allow the

use of the land without altering or impairing it. Both are property rights, but

usufructuary rights—like federal grazing rights—can ripen into land ownership

only in unusual circumstances, none of which are present in the case of federal-

land grazing.

319

Moreover, the general public has great affinity to the lands it

owns and uses, and therefore feels the endowment effect identified by Justice

Holmes no less strongly than public-land grazers.

320

Both have expectations,

and the general public’s are much more widely possessed and more firmly

grounded in law and history.

Despite the lack of any colorable legal merit of the Bundy occupation, the

effort illustrates some political support for a revolution in federal public-land

management.

321

Yet, before states launch serious efforts to de-federalize public

lands, they should consider whether they can afford to manage the lands and

continue the current subsidies afforded to users like grazers.

322

Grazers benefit

from low fees and federal programs like those supporting predator-control

315. See supra note 289 and accompanying text.

316. See, e.g., BAKER COUNTY, OR., NATURAL RESOURCES PLAN (2015), http://www.

bakercounty.org/commissioners/pdfs/Adopted_Natural_Resource_Plan_20160620C.pdf; GRANT

COUNTY, OR., PUBLIC LANDS NATURAL RESOURCES PLAN (2015), https://www.documentcloud.org

/documents/2852061-Natural-Resources-Plan.html.

317. See supra note 294.

318. Usufructuary rights are use rights—like grazing, timber harvesting, or mining—on lands

owned by another.

319. See supra notes 235–248 and accompanying text (discussing the doctrines of accession,

emblements, and constituent elements of the land). Adverse possession, a state common law doctrine, is

inapplicable on federal lands. Every statehood act includes a disclaimer of state land applying to federal

lands. See, e.g., Utah Enabling Act, § 3, ch. 138, 28 Stat. 107, 108 (1894) (“[T]he people inhabiting said

proposed State do agree that they forever disclaim all right and title to the unappropriated public lands

lying within the boundaries thereof”). Even if it applied, an adverse possession claim would founder

because federal grazing permits would defeat any claim of adversity—an essential element of a

successful adverse possession case. 28 U.S.C. § 2409(a)(n) (2012); see JOHN G. SPRANKLING &

RAYMOND R. COLETTA, PROPERTY: A CONTEMPORARY APPROACH 18 (2d ed. 2012).

320. See supra note 312 and accompanying text.

321. See supra notes 281–288 and accompanying text; see infra Postscript.

322. See Bale, supra note 54.

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824 ECOLOGY LAW QUARTERLY [Vol.43:781

measures.

323

Existing federal subsidies are perhaps unobjectionable if they

provide the public widespread benefits like maintaining water quality standards

and promoting watershed and wildlife protection, but the restraints that

accompany such measures are the root cause of the discontents’ dissatisfaction

with federal control.

Any serious measures to transfer federal public lands to the states must

also possess publicly enforceable conditions ensuring the continuation of those

public benefits and prohibitions against privatization or monopolization.

324

Given recent evidence that many Western counties oppose land transfers to the

states,

325

states should weigh whether such transfers actually further local

interests. But in the final analysis, given that even politically unpopular

designations of conservation units like Grand Staircase-Escalante National

Monument in southeastern Utah produced widespread economic benefits,

326

the discontents’ political agenda should meet with congressional skepticism.

The long-term intergenerational costs of the loss of federal public-land rights

would clearly outweigh any short-term profits from state conveyancing or

privatization.

POSTSCRIPT

On October 27, 2016, while this article was in press, the jury in the

Malheur occupation case acquitted the occupants of a conspiracy to deprive

federal employees of their right to work and weapons charges. There’s no

323. See id.; see also Jim Caswell, Opinion, Keep Public Lands in Public Hands, IDAHO

STATESMAN (Jan. 27, 2016), http://www.idahostatesman.com/opinion/readers-opinion/article

56933223.html; see also Rebecca Worby, In Wyoming, a Cautious Public Lands Victory, HIGH

COUNTRY NEWS, Feb. 3, 2017, http://www.hcn.org/articles/in-wyoming-a-cautious-public-lands-victory

(last visited Feb. 4, 2017) (discussing the Wyoming Senate President’s dropping of a proposed state

constitutional amendment which would have facilitated federal land transfers to the state, opposed by a

coalition of sportsmen, recreationalists, and conservationists called “Keep It Public, Wyoming”). Two

days earlier, on February 1, Rep. Jason Chaffetz (R-Utah) withdrew his bill, H.R. 621, the "Disposal of

Excess Federal Lands Act of 2017," which would have called for the selling of some 3.3 million acres of

federal land across ten states. The reason for the withdrawal was opposition from hunters and

fishers. See Jennifer Yachnin, Under pressure, Chaffetz withdraws bill to sell 3.3M acres, Greenwire

(Feb. 2, 2017), http://www.eenews.net/greenwire/stories/1060049460/search?keyword=+Rep.+Jason+

Chaffetz+%28R-Utah%29 (last visited Feb. 4, 2017).

324. Antimonopoly has been a cardinal principle of public-land law for centuries. See supra notes

29, 311 and accompanying text.

325. See Tay Wiles, Land Transfer Support, County by County, HIGH COUNTRY NEWS (July 25,

2016), https://www.hcn.org/issues/48.12/battles-over-whether-to-support-the-american-lands-council-

rage-on-county-by-county (identifying, preliminarily, about 15 counties in the 11 western states—

generally the more populous counties—opposing or not accepting the efforts of the American Lands

Council to generate support to transfer federal lands to the states).

326. See Phil Taylor, National Monuments: Grand Staircase-Escalante Winners and Losers,

GREENWIRE (July 14, 2016), http://www.eenews.net/stories/1060040270 (citing the mayor of the town

of Escalante stating that the economic winners were businesses like hotels, campgrounds, and

restaurants in the booming town, while the losers were coal companies which proposed large-scale

mining of the area).

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2016] THE PROPERTY CLAUSE AND ITS DISCONTENTS 825

assured way of knowing why the jury acquitted the occupants.

327

Perhaps the

case was poorly prosecuted. Perhaps the government did a poor job of voir dire

in selecting the jury. Perhaps the jury instructions were flawed. Perhaps the jury

did not understand the law underpinning the government’s authority to own and

manage public lands. Perhaps the result was simply jury nullification of laws

the jury members did not like. There is a long history of jury nullification

dating back to the eighteenth century in pre-Revolutionary America.

328

Whatever the reason for the acquittal, the result of the case does nothing to

change the underlying law discussed in this article. But the result could foster

political momentum to encourage Congress to exercise its constitutional

authority under the Property Clause to dispose of federal public lands to states

or private entities. There may be some limits as to those lands which Congress

may dispose,

329

but those limits are largely undefined.

The overriding lesson from the Malheur occupation may be that although

the underlying law clearly supports federal ownership of public lands, the

discontents’ claims have political resonance. Whether they have sufficient

political resonance to support congressional disposition is a question that will

be answered in the coming years. One would hope that the issue would be

debated openly and publicly by elected officials, not accomplished through

low-level congressional appropriation riders or other subterfuges. The

American people—all of the American public, not just those in close proximity

to the lands they hope to control—deserve to be involved in what would be an

historic change in the relationship that the American people have had with their

federal public lands.

Twelve days after the jury acquitted the Malheur defendants, Donald J.

Trump was elected the forty-fifth president of the United States. On December

13, 2016, the press reported that the president-elect chose Montana Republican

Congressman Ryan Zinke as Secretary of Interior after deciding against another

finalist for the position, Cathy McMorris Rodgers, a Republican

327. After the verdict, one juror explained that the jury did not think it could rely on the

defendants’ “defining actions” to convict them but instead to determine if “any agreement was made

with an illegal object in mind,” which the juror stated was “lost on the prosecution throughout.” That

juror suggested that the jury was influenced by the distinction that the defense lawyers drew between the

“‘effect’ of the occupation—which undoubtedly kept federal employees from doing their jobs—from the

‘intent’ of the occupiers,” noting that “[i]nference, while possibly compelling, proved to be insulting or

inadequate to 12 diversely situated people as a means to convict” because “[t]he air of triumphalism that

the prosecution brought was not lost on any of us, nor was it warranted given their burden of proof.” See

Maxine Bernstein, Juror: Prosecutors Failed to Prove ‘Intent,’ to Impede Federal Workers,

OREGONIAN (Oct. 29, 2016), http://www.oregonlive.com/oregon-standoff/2016/10/juror_4_prosecutors_

in_oregon.html (quoting from Juror 4, a college student at Marylhurst University, who thought the

government failed to prove the fundamental elements of the alleged conspiracy charge).

328. See, e.g., Zenger Trial, 17 How. St. Tr. 675, 706, 716, 722 (1735) (acquitting newspaper

publisher John Peter Zenger of libel because the accusations he published about Governor Crosby were

accurate).

329. See supra notes 26, 311 and accompanying text.

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826 ECOLOGY LAW QUARTERLY [Vol.43:781

Congressmen.

330

The apparent reason for choosing Zinke over McMorris

Rodgers—who was favored by the Republican establishment—was due to the

influence of Donald J. Trump, Jr., who opposed her over her past support for

selling off federal public lands.

331

Thus, the early indication is that the Trump

Administration will not favor large-scale parceling off of federal public lands to

Western states. Some conservationists hold out hope that Secretary Zinke will

become a public lands champion in the tradition of Teddy Roosevelt.

332

330. See Juliet Eilperin, Trump taps Montana congressman Ryan Zinke as interior secretary,

WASH. POST (Dec. 13, 2016), https://www.washingtonpost.com/news/energy-environment/wp/2016/

12/13/trump-taps-montana-congressman-ryan-zinke-as-interior-secretary/?utm_term=.20a70e6da3b5.

331. Jonathan Martin & Alexander Burns, McConnell Eyed Ryan Zinke for a Senate Seat. Donald

Trump Had Other Ideas, N.Y. TIMES (Dec. 17, 2016), http://www.nytimes.com/2016/12/16/

us/politics/ryan-zinke-mitch-mcconnell-trump-cabinet.html?_r=0.

332. See Ryan Zinke, Guest Opinion: A Conservative Case for Conservation, BILLINGS GAZETTE

(April 24, 2016), http://billingsgazette.com/news/opinion/guest/guest-opinion-a-conservative-case-for-

conservation/article_d23e5f2a-609e-5413-af98-819d15d365aa.html (in which then-Congressman Zinke

drew a parallel to the conservation measures he supports and those supported by Roosevelt).

We welcome responses to this Article. If you are interested in submitting a response for our online

companion journal, Ecology Law Currents, please contact cse.elq@law.berkeley.edu. Responses to

articles may be viewed at our website, http://www.ecologylawquarterly.org.