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Fact Check: More about Carson’s claim on federal land

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Thursday, Dec. 31, 2015 6:46 PM

In a previous column, I addressed Ben Carson’s statement about returning federal land to the states.

“I would advocate returning land to the states,” he said. “It’s not like they’re irresponsible people who don’t care what happens, you know. I just don’t see any benefit from the government owning this much land.”

Following is additional information related to that quotation.

The U.S. Constitution addresses the relationship of the federal government to lands. Article IV, Section 3, Clause 2, the Property Clause, gives Congress authority over federal property generally, and the Supreme Court has described Congress’s power to legislate under this Clause as “without limitation.”

The equal footing doctrine (based on language within Article IV, Section 3, Clause 1), and found in state enabling acts, provides new states with equality to the original states in terms of constitutional rights, but has not been used successfully to force the divestment of federal lands. These efforts failed for a number of reasons. A fundamental obstacle was that Nevada, and other states, agreed as a condition of statehood to disclaim forever “all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.” This language was part of the enabling act creating the states and was incorporated into their constitutions.

The equal footing doctrine is based on Article IV, Section 3, Clause 1 of the Constitution. That clause addresses how new states will be admitted. In the context of land, the equal footing doctrine has been held to mean that states have the authority over the beds of navigable waterways. Some have argued that the equal footing doctrine prohibits permanent federal land ownership. This is contrary to the plain wording of the Constitution. The doctrine and some language within the U.S. Supreme Court case of Pollard’s Lessee v. Hagan have been combined to provide an argument that the federal government held the lands ceded by the original states only temporarily pending their disposal. However, this theory has been rejected by other Supreme Court cases. The court found that any limitations on holding lands ceded by the original states did not apply to western lands acquired after the Constitution went into effect, and that the equal footing doctrine did not mean that the newer western states were entitled to the public lands.

The Federal Land Policy and Management Act of 1976 (FLPMA) formally ended the previous disposal policy, expressly declaring that the national policy generally was to retain the remaining lands in federal ownership. Section 102(a) of FLPMA states: “The Congress declares that it is the policy of the United States that – (1) the public lands be retained in Federal ownership, unless as a result of the land use planning procedure provided for in this Act, it is determined that disposal of a particular parcel will serve the national interest.”

The Supreme Court in Hawaii et al v. Office of Hawaiian Affairs, 2009 did not find the FLPMA act “unconstitutional.” Under the Admissions Act 1959 and the Apology Resolution, “the United States grant[ed] to the State of Hawaii, effective upon its admission into the Union, the United States’ title to all the public lands and other public property within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union.” This is not the case with FLPMA.

Chip Tuthill is a longtime resident of Mancos.

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