by Raph Graybill, Fellow, Yale Institution for Social and Policy Studies (ISPS)
This spring, western state legislatures will consider a series of laws demanding the end of public land management by the federal government. The bills, which evoke the “Sagebrush Rebellion” anti-conservation movement of the 1970s, issue a state-law “demand” that the United States relinquish its title to American public lands and transfer ownership to states.
Nearly two years after Utah passed its “Transfer of Public Lands Act” (TPLA), similar laws are under consideration in a majority of western states. At stake is the core of American conservation policy. Under state ownership, state governments could restrict public access, authorize commercial development or even divide lands for private sale. Current federal environmental law effectively forecloses these possibilities, limiting privatization and preventing environmental degradation.
Other outlets have addressed the policy wisdom of transfer demand laws, but very little work has been devoted to understanding their constitutional validity. This post will address the legal arguments behind transfer demands with an eye toward understanding both the Constitution’s text and a newer, nontextual argument advanced by supporters.
A legal analysis of transfer demands begins with the Constitution itself, and the plain text of the Constitution speaks directly to transfer demand laws. The Property Clause, Article IV, § 3, cl. 2, states, “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” The text leaves little room for ambiguity over who may make decisions affecting United States land: Only Congress may initiate the sale or transfer of federal public lands.