March 11, 2015

Private: Public Land Transfer Laws: Not Constitutional Then, Not Constitutional Now

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.

The Supreme Court has regularly upheld this plain text understanding of authority over American public lands.  In its 1840 case, United States v. Gratiot, the Supreme Court held that “[t]he power over the public lands is vested in Congress by the Constitution, without limitation.”  A hundred years later, the Court held the same in United States v. City & County of San Francisco: “Congress may constitutionally limit the disposition of the public domain to a manner consistent with its views of public policy.”

The Constitution grants the United States exclusive legal control over American public lands.  Congress may initiate a transfer or sale, but demands by state or local governments have no constitutional foundation.

Even without the clear prohibition in the Property Clause, transfer demands face constitutional problems under the Supremacy Clause as well.  Article VI makes the Constitution and federal statutes “supreme” over state statutes.  In the words of the Supreme Court, the Supremacy Clause “secure[s] federal rights by according them priority whenever they come in conflict with state law.”

Insofar as state transfer demands conflict with federal laws, they are unconstitutional.  Such conflict is inevitable with respect to state transfer demands.  The Federal Land Policy and Management Act (FLPMA), for example, articulates a comprehensive policy for managing American public lands.  Set against a state transfer demand law, the Supremacy Clause gives effect to the federal law and renders the state demand invalid.

Recognizing the clear hurdles created by the text of the Constitution, transfer demand supporters have also advanced a new, nontextual argument rooted in analogies from contract law.  According to the argument, state enabling acts (federal laws giving rise to new states) resemble contracts between the United States and states gaining admission to the Union.  By looking at historical evidence at the time of a state’s admission (e.g. newspaper clippings, statements by politicians), supporters argue, it can be established that states expected to eventually gain control over federal lands.  Because a contract should give effect to the expectations of both parties at signing, the United States should turn over its land.

Unfortunately for its supporters, the “enabling act theory” relies as much on a misunderstanding of the Constitution as it does on poor contract law theory.  To begin with, state enabling acts are not “like” contracts.  Plainly, they’re statutes.  They interact with other laws in the manner that statutes do; when an enabling act comes into conflict with a subsequent state law, the enabling act trumps the state law.  And the plain text of most Western state enabling acts expressly renounces state claims to federal land.

The Enabling Act of 1889, for example, grants the admission of North Dakota, South Dakota, Washington and Montana to the Union on the condition “[t]hat the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof.”  The Act reserves the right to “disposition” of public lands to the United States.  As a federal law, the enabling act is clear about the division of political authority: The United States makes ownership decisions about United States land; state governments will not.

Even viewed as contracts, however, state enabling acts offer little support for the idea that the United States has a “duty to dispose” of its public land.  Under ordinary contract interpretation, the written contract itself is the central basis for determining the scope and terms of an agreement.  Exogenous evidence is not evidence of a party’s intent.  Cherry-picked statements from newspapers or political officials at the time are far worse indications of what the parties intended than the actual agreement.  As the leading proponent of the state enabling act theory notes, “the interpretation of any written instrument must be informed by surrounding words and all sections.”  When states said they would disclaim their rights to United States land as a condition of entry to the Union, they meant it.

In the end, states have no constitutional power to force federal land transfers.  The same strategy was attempted during the “Sagebrush Rebellion” of the 1970s and met an emphatic defeat in federal courts.  Though transfer demand proponents have refashioned their legal arguments, their constitutional invalidity remains the same.  The Property Clause and the Supremacy Clause make state land transfer bills unconstitutional.  A vague “contract like” theory based on state enabling acts does not avoid the constitutional problem, either.  To require a transfer, a state enabling act must say so in its text.

If transfer demand supporters want a change in United States land policy, they should petition the United States through Congress.  Under the Constitution, state transfer demand laws can amount to little more than spent paper.

Preemption, Separation of Powers and Federalism, Supreme Court