John Leshy on the Constitutionality of Public Lands

Published on: Author: Dave Owen

Must the federal government turn over federal public lands to the states? Several years ago, the Utah Legislature appropriated several hundred thousand dollars to study this very question. Not surprisingly, since the study was written by attorneys who hoped to litigate these same claims, the answer was “yes.”

This was not exactly a new position. Since the early 1800s, politicians in states with ample federal landownership have occasionally made similar claims (while many other politicians have dismissed them as groundless), and have attempted to ground them in the United States Constitution. In more recent times, arguments against federal landownership have been the calling card of a variety of western extremists, including the recent occupants of the Malheur National Wildlife Refuge. No court has ever turned those arguments into a holding. But the Utah study—and legislation demanding that those lands be turned over—gives the claims renewed political relevance and, perhaps in some circles, a veneer of respectability.

In a new article, Are U.S. Public Lands Unconstitutional?, 69 Hastings Law Journal 499 (2018), John Leshy shows just how thin that veneer of respectability really is. His account begins before the enactment of the Constitution and continues to the present day, and it shows, convincingly, that the arguments against federal public lands are inconsistent with constitutional text, the basic values and political compromises underlying that text, the historic understanding and practices during the early years of the republic, the actions of both federal and state political leaders at the time Utah became a state, the legislation responsible for Utah’s statehood, and all but two of the many Supreme Court opinions that address the subject. One of those two exceptional cases was Dred Scott v. Sandford, which, as Leshy wryly notes, “is the most thoroughly discredited decision in Supreme Court history, earning practically universal condemnation among historians and constitutional scholars.” The other, Pollard v. Hagan, discusses favorably the idea that the federal government should relinquish its landholdings, but only in dicta that at least some of the justices who signed on to the opinion may never have read. In any event, neither those justices nor any of their successors (or predecessors) ever turned that dicta into a holding. Instead, as Professor Leshy shows, many Supreme Court cases have affirmed the power of the federal government to retain and manage the public lands.

So why, if these arguments have so little basis, do they keep coming up? The short answer is that the federal government does own and manage a lot of land in the west, and it sometimes limits mining, grazing, timber harvesting, and other activities on those lands. Blaming the federal government for those limits is rewarding political sport in the west, while acknowledging the services the federal government provides, like wildfire suppression, payments in lieu of taxes, public recreation, and watershed protection, is not always so popular. And dressing those grievances up in the Constitution seems even more tempting.

That political economy may be changing. As Professor Leshy notes, western voters generally support federal public-land ownership, and eventually politicians may fall into step with those views. When that happens, articles like this one may no longer be necessary. But in the meantime, Professor Leshy has provided a valuable service by thoroughly debunking some incendiary but groundless claims.