The Utah and Bundy
Ranch cases are a reminder of just how constitutionally untenable and
corrupting federal ownership is.
With President Trump’s
recent order to “shrink” two massive federal land grabs in Utah and a shocking
turn of events in the Bundy Ranch/BLM controversy, the issue of federal land
ownership is back in the news. Both events illustrate how the federal
government has used its massive land holdings to control the lives of
Americans. And lurking in the background of these events is the constitutionality
of federal land ownership, an issue that has been ignored for generations by
politicians, the courts, and the media. Indeed, the evidence is fairly clear
that our founding fathers did not design the federal government to be America’s
largest landowner with all the abuses that entails.
The federal government now
has a total of 640 million acres under its control — almost a third of the
nation’s land. The majority of land in Nevada, Alaska, Utah, Oregon and Idaho
is owned by the feds. In Arizona, California, Wyoming, New Mexico, and
Colorado, federal ownership exceeds a third. Indeed, if all 11 Western states
were combined into one territory, the feds would own nearly 50% of it. This
land is primarily administered by the United States Forest Service (USFS), the
National Park Service (NPS), the Bureau of Land Management (BLM), and the Fish
and Wildlife Service (FWS). The Department of Defense also owns 20 million
acres.
But if liberals had their
way, even more land would be seized by the feds. Fortunately, it is unlikely
this administration will engage in any state land confiscations. Indeed,
Trump’s action to decrease the acreage of the two Utah “monuments” is a good
start in rolling back this abuse of federal power. These monuments were created
by decree under President’s Clinton and Obama by abusing the narrow intent of
the 1906 Antiquities Act. Combined, the two preserves originally encompassed
3.2 million acres, but Trump knocked them down to 1.2 million acres. Not
surprisingly, the left went ballistic, but the truth is Trump is the one acting
in accord with the Constitution and in the best interest of the people of Utah,
and even the environment.
Both of these land grabs
were initiated with little or no input from Utah’s civic, political, and business
leaders. And, of course, as with most Democrat “environmental” initiatives,
cronyism and corruption are evident. For example, Bill Clinton’s Utah land grab
— the “Grand Staircase-Escalante National Monument” — placed off-limits all
energy development, including the world’s largest known deposit of clean
burning coal. Not coincidentally, this proviso also quietly benefited the
owners of the world’s second-largest deposit of clean burning coal: the Lippo
group, owned by the Indonesia-based Riady family and, of course, large donors
to the Clinton Foundation (and huge Clinton donors going back decades). In
other words, Clinton crippled America’s energy capabilities in order to enrich
his friends and himself. As with nearly everything the Clintons do, their operating
principle has remained remarkably consistent: “Big donors first; America last.”
The history of federal land
management is not a pretty one. Heavy-handed federal land seizures have been
ongoing for decades in coordination with radical environmentalist groups and
almost always without the support of state leaders, Native American tribes, and
the people who work the land such as miners, ranchers, farmers, loggers, etc.
Indeed, a report by the Property and Environment Research Center (PERC), titled Divided Lands: State vs. Federal Management in the West, concluded
that “By nearly all accounts, our federal lands are in trouble, both in terms
of fiscal performance and environmental stewardship.”
The report says that states
“produce far greater financial returns from land management than federal land
agencies. In fact, the federal government often loses money managing valuable
natural resources. States, on the other hand, consistently generate significant
amounts of revenue from state trust lands. On average, states earn more revenue
per dollar spent than the federal government for each of the natural resources
we examined, including timber, grazing, minerals, and recreation.” Incredibly,
states “earn an average of $14.51 for every dollar spent on state trust land
management,” while the USFS and BLM “generate only 73 cents in return for every
dollar spent on federal land management.”
That’s a 20-to-1 ratio. In
other words, the feds couldn’t responsibly manage a garden, let alone the
millions of acres they control. No one should be surprised. That’s why Trump’s
action on the Utah monuments will be good for Utah, good for the state’s
budget, and good for the environment because Utah will manage that land far
more efficiently than will the federal government.
But back to the
Constitution. Most Americans have no clue what our founders said about federal
land management. The Constitution’s Property Clause (Article
IV, Section 3, Clause 2) gave Congress the power to dispose of property, but
does not mention a power to acquire property. However, under the Necessary
and Proper Clause (Article I, Section 8, Clause 18), the federal
government was given the power to acquire land but only for the purpose of
carrying out its enumerated powers. This would include parcels for military
uses, post offices, etc. Nowhere does the Constitution give the federal
government the power to retain acreage for unenumerated purposes such as
grazing, mineral development, agriculture, forests, or even national parks.
This was wisely left up to the prerogative of the states and the people.
Moreover, the Constitution
even details what to do with federally owned property inside newly acquired
states. It declares that the federal government has a duty to dispose of this
land unless it is being used for an enumerated purpose, meaning that all
federal land not being used for activities specifically
authorized by the Constitution should be transferred back to the states. An
in-depth analysis of these clauses by the 10th Amendment Center can
be found here.
At no time did America’s
founders ever envision a system of land ownership that granted the federal
government ownership of almost a third of the nation’s land. And this is
totally logical and consistent with everything the founding fathers wrote and
said about federal power. They feared federal power so much they divided it
into three branches and did everything they could to protect the rights of
states. Our founders knew that widespread federal land ownership would be used
to blackmail states and compromise their independence.
Indeed, during the federal
convention debates of September, 1787, Elbridge Gerry — the future VP under
President James Madison — argued that federal ownership of land “might be made
use of to enslave any particular State by buying up its territory, and that the
strongholds proposed would be a means of awing the State into an undue
obedience.” Even the Federalists, who advocated a slightly stronger central
government, did not favor federal land ownership outside of the Constitution’s
enumerated purposes. We know that because they voted to ratify the Constitution
with the aforementioned restrictions on federal land ownership.
It is clear that
generations of politicians and even federal judges have ignored the
constitutional restrictions on federal land ownership. Over the last 150 years,
the federal government, using the BLM, USFS, FWS, NPS and even the Department
of Defense, has held on to millions of acres that should have been turned over
to the states once they joined the union. And the feds have increased this
acreage with various seizures over the years, usually under some type of
“environmental” pretense. Then they erected a vast array of outrageous
regulatory and land use controls over mining, farming, logging, oil
exploration, and so forth, in most cases with no input from local governments
or the people affected. This abuse has come at the expense of state governance
and is a total rejection of Republicanism and decentralized power as clearly
advocated by our founders. This is precisely the type of federal abuse many of
the Constitution’s signers feared would occur.
Indeed, in the Western
states, clashes between federal land management agencies and those who live and
work on or near these land holdings are frequent, but the mainstream media
often ignores such stories. However, most readers will remember the Cliven
Bundy incident, the Nevada rancher who refused to pay $1.2 million in grazing
fees to the BLM on grounds the land belonged to Nevada, not to the feds. When
the Bureau threatened to seize the ranch in 2014, hundreds of cowboys and
militia members poured in from all over the country to defend the property.
Fortunately, cooler heads prevailed and the feds backed down. Many Americans
were shocked at the appearance of armed citizens, but the reality is that our
founding fathers argued in favor of gun ownership precisely for the purpose of
resisting government tyranny.
The Bureau of Land
Management’s police-state actions at the ranch were recently exposed, thanks to
former BLM Special Agent and whistleblower Larry Wooten, whose shocking report
details the agency’s complete disregard for the rights of the Bundy family. In
his report, which became public in early December, Wooten wrote that “… the
investigation revealed a widespread pattern of bad judgment, lack of
discipline, incredible bias, unprofessionalism and misconduct, as well as
likely policy, ethical, and legal violations among senior and supervisory staff
at the BLM’s office of Law Enforcement and Security.”
Wooten wrote that the BLM
had photos of Cliven Bundy and Eric Parker on its “arrest tracking wall,” but
with x’s marked through their faces and bodies, as if they were to be
eliminated. He also reported that the Special Agent in Charge, Dan Love, had
boasted that his actions in a previous BLM controversy led to a number of
people committing suicide. Wooten’s report details outrageous statements by
officials such as, “Go out there and kick Cliven Bundy in the mouth (or teeth)
and take his cattle.” And the report says that the agents commonly referred to
the Bundys and their supporters as “rednecks,” “retards,” and “douche bags.”
One agent even boasted about “grinding” a Bundy family member’s face into the
gravel.
There were also descriptive
titles given to body cam videos taken of the Bundy ranch, such as “Are you
f–king people stupid or what,” “Pretty much a shoot first, ask question later,”
and “Shoot his f–king dog first.” Indeed, the Wooten report exposes the agency as
full of arrogant do-gooders who think they are better than the rural folks they
obviously detest, a mentality similar to the attitudes held by some ATF and FBI
agents at Waco and Ruby Ridge. Indeed, Wooten wrote that he thought the Bundy
ranch confrontation very well could have turned deadly due to the attitude of
the BLM agents. One can just envision the thoughts of these agents: Hey,
the FBI and ATF got to shoot civilians at Waco, why can’t we?
This report and more were
part of a cache of 3,000 documents that Bundy’s attorneys proved to the court
were illegally withheld from them by the BLM and the U.S. Attorney’s office. As
a result, on December 20, Judge Gloria Navarro dismissed the case, although
Cliven Bundy could be tried again. Two other trials against other Bundy ranch
defendants ended in hung juries. Bundy has always maintained that his case was
all about Obama’s hatred for those who work the land and by, extension, an out
of control BLM that thrives on harassing hard-working Americans. It appears he
is correct.
The Wooten report can be read here, but be forewarned: it has
descriptions of behavior too obscene to quote here. Trump should not only order
the BLM to drop its persecution of Cliven Bundy but, on misconduct grounds
alone, he should fire everyone involved with the Bundy case.
Lastly, it should be
pointed out that the Bundy confrontation was likely about Democrat cronyism and
fundraising. Reports appearing in Bloomberg, Breitbart, and Reuters
in 2014 indicated that former Senate Majority Leader Harry Reid had teamed up
with Chinese billionaire Wang Yusuo in an effort to create a massive 9,000-acre
solar energy farm on the same federal land apparently used by Bundy to graze
cattle. And Yusuo’s company, the ENN Group, contributed over $40,000 to Reid
over the course of three election cycles. One BLM document makes clear that
Bundy’s cattle grazing negatively impacted potential solar farm development on
this land.
Although the Chinese deal
apparently fell through, at the time the BLM was trying to shut down Bundy’s
ranch the deal was very much alive. Incidentally, the BLM has to approve any
deal allowing a private company to profit off of its land holdings, but not a
problem. The BLM director was Neil Kornze, an Obama appointee and Reid’s former
senior adviser. The fix was in.
But not to worry. After the
Chinese deal fell apart, Reid began working closely with a company called First
Solar on a project called the Moapa Southern Paiute Solar Project, which,
again, targets the area Bundy’s cattle grazes on. As reported by the Courtwatcherblog that
monitors Reid’s shady solar power/public land dealings: “Harry Reid’s interests
are clear. He doesn’t care about public lands, but what he stands to profit off
of their sale, no matter if it’s sold to China, Saudi Arabia, Russia, or even
South Africa… the facts show Harry Reid’s interests in the Bundy men being
in jail, make it a lot easier to grab their land…”
First Solar, by the way,
was funded in part by Goldman Sachs, a million dollar Obama contributor. Other
investors include Obama bundlers Bruce Heyman and David Heller, two Goldman
Sachs executives who served on Obama’s 2008 Finance Committee. Yet another
Obama bundler, Paul Tudor Jones, is a major investor in First Solar and First
Solar’s CEO, Michael Ahearn, is also a big Democrat donor.
In other words, the effort
to close down the Bundy ranch probably had less to do with grazing fees than
with Harry Reid figuring out a way to convert cattle grazing land to a solar
farm, thereby rewarding Democrat fat cats who in turn fund Democrat
politicians. This is what the BLM has become: an agency that facilitates the
creation of projects that financially benefit the Democrats.
Trump’s action to shrink
federal land seizures is admirable, but there is much more he could do if he
really wants to restore the Constitution’s restrictions on federal land
ownership. He should abolish the BLM and all other land-managing federal
agencies and transfer all their holdings back to the states, included federal
preserves and national parks, with the only exception being land needed
specifically for military use and federal offices of various kinds. This action
would be on solid constitutional grounds. Moreover, the states already have
competent land management agencies that can easily, and more efficiently,
manage this land.
Certainly there has been
litigation over the years involving the constitionality of federal land
ownership but most of these cases feature liberal judges turning themselves
into pretzels trying to ignore the plain meaning of the constitution.
Typically, these judges managed to find phony “rights” that allow the feds to
justify its ownership of a third of America’s land. There’s no doubt any effort
by Trump to end the federal government’s illegal land ownership regime would be
challenged in the courts but such a case would likely end up in the Supreme
Court and there’s a good chance the high court would rule in his favor. There
is simply no body of writing by the founders that justify federal control of so
much acreage that have absolutely zero nexus to the Constitution’s enumerated
powers. It’s that simple.
Aside from restoring proper
constitutional restrictions on federal land ownership, such a massive transfer
of federal land would do a number of things. First, it would energize the
economy of many states. Over the last 50 years, millions of acres of land with
potential oil and gas reserves, timber, mining deposits and so forth were
foolishly placed off limits by federal land confiscations created by
presidential orders or congressional action. The long-running federal war on
cattle, farmers, loggers, ranchers, and miners would largely come to an end as
state agencies and politicians would be far more accountable to the people who
live off these lands.
Secondly, contrary to the
inevitable hysteria of the environmentalists, there is little doubt some of
this land would become state preserves as the citizens of each state will want
to preserve environmentally sensitive land and historic landmarks. And the
states will do a better job managing environmentally important land than would
federal agencies that take orders from distant bureaucrats in Washington, D.C.
The point is, it will be the citizens of each state who, through their
legislatures and state agencies, would make the decisions as to how best to
manage their own land.
The National Parks may be a
special issue. While they also lack a constitutional basis, they could be
transferred back to state control on the condition they continue to operate
them as parks. Indeed, states wouldn’t have it any other way since there is
much money to be made from the national parks in the way of tourism, camping, hiking
and so on.
Most Americans have
forgotten this, but the shady tactics of federal land management agencies were
a big issue in Ronald Reagan’s 1980 campaign. At the time, the movement of
those fighting such abuses was called the “Sagebrush Rebellion,” and this issue
propelled tens of thousands of voters to support Reagan’s candidacy. To be
honest, though, Reagan was unable to carry out any substantial reforms
regarding federal land ownership.
If Trump wants to go down
in history as a president who restored the federal government to its proper
limited role, then he should revitalize this forgotten section of the U.S.
Constitution and transfer all non-enumerated federal land back to the states.
Such action will allow states to control their own destinies, create better
managed parks and preserves, and create tens of thousands of new jobs by
energizing natural resource industries such as oil, natural gas, mining, and
timber. This is a perfect issue for him. Be bold, Mr. President, and just do
it.
https://spectator.org/trump-needs-to-transfer-all-federal-land-back-to-the-states/?utm_source=American+Spectator+Emails&utm_campaign=feac5649df-EMAIL_CAMPAIGN_2018_01_11&utm_medium=email&utm_term=0_797a38d487-feac5649df-104289085
