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RL30126: Federal Land Ownership:
Constitutional Authority; the History of Acquisition,
Disposal, and Retention; and
Current Acquisition and Disposal Authorities

Ross W. Gorte

Specialist in Natural Resources Resources
Science, and Industry Division

Pamela Baldwin

Legislative Attorney
American Law Division

April 7, 1999

ABSTRACT

Federal land ownership and management are of perennial interest to Congress. This report describes the constitutional authority for federal land ownership. It provides the history of federal land acquisition and disposal, and describes the federal land management agency jurisdictions, based on congressional authorities to reserve or withdraw lands from disposal. The report then describes several efforts to force additional federal land disposal, including recent legislative activity. It concludes with describes the various current land acquisition and disposal authorities of the four major federal land management agencies. The report will be updated to reflect major legislative activity or changes in acquisition or disposal authorities.

Summary

Federal land ownership began when the original colonies ceded their "western" lands (between the Appalachian Mountains and the Mississippi River) to the central government between 1781 and 1802. Substantial land acquisition in North America via treaties and purchases began with the Louisiana Purchase in 1803 and culminated with buying Alaska in 1867. In total, the federal government has acquired 1.8 billion acres in North America, of which I.I billion acres have been disposed.

Two provisions of the U.S. Constitution address the relationship of the federal government to lands. Article I requires cession by the states and consent of their legislatures for the exercise of exclusive federal Jurisdiction over lands. Article IV addresses the authority of Congress over federal property generally, and the Supreme Court has described Congress's power to legislate under this Clause as "without limitation." Whether to acquire more or to dispose of any or all remaining federal lands is a policy question that is the responsibility of Congress.

The initial federal policy was generally to transfer ownership of many federal lands to private and state ownership. Congress enacted many laws granting lands and authorizing or directing sales or transfers, ultimately disposing of 1.1 billion acres. However, from the earliest times, Congress also provided for reserving land for federal purposes, and over time has reserved or withdrawn increasing area, such as for national parks, national forests, and wildlife refuges.

The Taylor Grazing Act of 1934 was enacted to remedy the deterioration of the range on the remaining public lands. This was the first direct authority for federal management of these lands, and implicitly began the shift toward ending disposals and retaining lands in federal ownership. In 1976, Congress formally declared that national policy was generally to retain the remaining lands in federal ownership in the Federal Land Policy and Management Act.

Beginning in 1979, Nevada and other states asserted state title and management authority over the public lands, and challenged the constitutionality of the federal land retention policy. States have not prevailed in litigation on this issue. Bills to change the retention policy were introduced in the 95th, 96th, and 97th Congresses, and again in the 104th and 105th Congresses, but no bills were reported by a committee or saw floor action.

The Bureau of Land Management has several authorities for disposing of public lands, including sales, mining patents, and transfers for public purposes. The Forest Service has several very limited authorities, while the National Park Service and Fish and Wildlife Service cannot dispose of most of their lands. All four of these major federal land management agencies have broad authorities to acquire lands, although the Forest Service and National Park Service are generally restricted to lands within the designated boundaries of their units.

Contents

Federal Land Acquisition
Constitutional Basis for Federal Land Ownership
Federal Land Disposal
Federal Land Withdrawals
Federal Land Retention
"The Sagebrush Rebellion"
Recent Efforts to Force Divestiture of the Remaining Federal Lands
Current Federal Land Disposal Authorities
        Bureau of Land Management
        Forest Service
        Fish and Wildlife Service (FWS)
        National Park Service
Current Federal Land Acquisition Authorities
        Bureau of Land Management
        Forest Service
        Fish and Wildlife Service (FWS)
        National Park System

This report responds to numerous requests for information on the history and constitutionality of land ownership by the federal government. Beginning in 1781, the U.S. government has acquired 1.8 billion acres of land in North America,1 and has disposed of I.I billion acres. The remaining federal lands are heavily concentrated in 12 western states (including Alaska), where the federal government owns more than half the land (ranging from 27% in Washington to 83% in Nevada). Many in the west continue to be concerned about what they feel is excessive federal influence over their lives and economies, and argue that the federal government should divest itself of many of these lands. State and local efforts to force divestiture have proven unsuccessful in the courts. Others support the policy of retaining these lands in federal ownership. The current authorities for federal land acquisition and disposal vary among the major federal land management agencies.

Federal Land Acquisition

Federal land ownership began when the original colonies ceded title to more than 40% (237 million acres) of their "western" lands (between the Appalachians and the Mississippi River) to the central government between 1781 and 1802. Federal land acquisition from foreign sources began with the Louisiana Purchase in 1803 (530 million acres) and continued via treaties with Great Britain and Spain in 1817 and 1819, respectively (76 million acres). Other substantial acquisitions, via purchases and treaties, occurred between 1846 and 1853 (620 million acres). The last major land acquisition by the federal government in North America was the purchase of Alaska in 1867 (378 million acres).

In some states — Maine to Georgia — the central government originally owned no land. Except for Florida (which was obtained from Spain), federal ownership of lands east of the Mississippi River was ceded by the original states, and additional states were formed from them.2 West of the Mississippi River (except Texas), lands were primarily acquired by the U.S. federal government from foreign governments. How the federal government came to own its lands can affect which laws govern the lands' management. The "public domain" lands, primarily those obtained from a foreign sovereign, typically are governed by different laws than are lands "acquired" from states or individuals.

Constitutional Basis for Federal Land Ownership

Two provisions of the U.S. Constitution address the relationship of the federal government to lands. Article 1, §8, Cl. 17 requires cession by the states of exclusive jurisdiction over certain federal enclaves and consent of the legislature of the state in which the lands lie to the exercise of that type of jurisdiction by the federal government. Section 8 reads:

[Congress is authorized] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings; ...

This part of the Constitution addresses the question of when and how the United States enjoys "exclusive legislative jurisdiction" over lands — which is to say when the United States has full legislative authority over lands such that state and local laws do not apply, except as Congress permits. Other types of jurisdiction are "partial" (when a state has withheld some part of full cession of all jurisdiction), or concurrent (when both the state and federal government have general legislative jurisdiction). Lastly, the federal government may have mere proprietary jurisdiction, in which case state and local laws apply, except to the extent the laws are preempted by federal law. Absent the consent of a state to any other degree of jurisdiction, the federal government has proprietary jurisdiction.3 Note, however, that when Congress acts within its granted powers, the federal laws are valid regardless of the type of jurisdiction the federal government may have, and under the Supremacy Clause of Art. VI of the Constitution, federal law may preempt state and local law — either expressly or by implication from federal purposes.

State law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre- empted.... If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, ... or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.4

Therefore, the Article I provision speaks to the subject of jurisdiction and the extent to which state law applies to an area. The Article I provision means that the federal government may not unilaterally give itself legislative jurisdiction over an area to the exclusion of state law, but rather must have the consent of the state in question to exercise that jurisdiction. The Article I provision does not address the authority of the United States to hold or manage property.

Article IV, §3 does speak to this more general authority over property, and 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;...

This provision gives Congress authority over the lands, territories, or other property of the United States. The Supreme Court has described this power as "without limitation" and distinguished it from the Article I provision, slating that:

... while Congress can acquire exclusive or partial jurisdiction over land within a State by the State's consent or cession, the presence or absence of such jurisdiction has nothing to do with Congress' powers under the Property Clause. Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause.... And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause....5

At times, it has been asserted that Article IV was intended to provide only temporary authority for the government to manage federal lands and properties pending prompt disposal to states and individuals. However, Article IV is not so worded and has not been so interpreted. Support for the position of limited federal authority rests on the implications of certain dicta in Pollard's Lessee v. Hagan,6 which indicated that the federal government held the lands ceded by the original states only temporarily pending their disposal. Some have argued that this language combined with the "equal footing doctrine" — that new states come into the Union on an equal footing with older states — means that the federal government may only hold lands temporarily. However, other Supreme Court cases negate this argument. The equal footing doctrine does not mean that physical or economic differences among states are precluded 7 and the doctrine only transfers title of tidelands and submerged lands beneath navigable waterways to the states.8 It is accepted law that the federal government may own and hold property as Congress directs.9 Whether some or all of the remaining federal lands should be retained or be disposed to the states, or whether to acquire additional federal lands, appears to be a. policy question that Congress, of course, may answer as it chooses.

Federal Land Disposal

The initial policy of the federal government generally was to transfer ownership of many of the federal lands to private and state ownership to pay Revolutionary War soldiers, to finance the new government, and later to encourage the development of infrastructure and the settlement of the territories. In October 1780, even before the Articles of Confederation were ratified, the Continental Congress adopted a general policy for administering any lands transferred to the Federal Government:

The lands were to be "disposed of for the common benefit of the United States," were to be "settled and formed into distinct republican States, which shall become members of the Federal Union, and shall have the same rights of sovereignty, freedom and independence, as the other States . . . ." The lands were to "be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled . . . ."10

The need for revenues to pay off the national debt was a driving force in the debate over land disposal systems.11 The Continental Congress balanced the need for revenue with other needs (e.g., compensating veterans and providing for public schools) in enacting the Land Ordinance of May 20, 1785, to address the lands in the Ohio Territory (north of the Ohio River and west of Pennsylvania). After extensive debates, the Continental Congress essentially followed the New England approach for land disposal, and included several provisions that were used in most federal land disposal legislation over the subsequent 50 years, including: prior rectangular survey before disposal; public auction of the surveyed lands; a minimum price ($1 per acre, but typically payable in highly depreciated securities); and at least one section (1/36th) of every 6-mile square township "for the maintenance of public schools within the said township."12

Questions about the governance of these lands (including potential statehood) were resolved by the Continental Congress in the Northwest Ordinance of 1787, and at nearly the same time and in nearly the same manner, by the Constitutional Convention drafting the new U.S. Constitution. The decision was for initial administration by a federally appointed governor, followed by shared authority between an appointed governor and a representative assembly, culminating in statehood on an equal footing with the original states.

The Constitutional Convention also addressed concerns about statehood for the western lands. Robert Morris of Pennsylvania expressed apprehensions about the impact of "western" representation by unschooled frontiersmen on the developed east;13 this concern was addressed in Article IV, §3, which requires the consent of both Congress and the legislatures of the existing states from which a new state is created. Charles Carroll of Maryland noted the concern of small states that this consent provision, together with the existing state claims to the "western" lands (e.g., the Ohio Territory), could prevent eventual statehood for those lands, because the state claiming the land could deny its consent;14 this was then addressed in Article IV, §3, by the last phrase in the section — that nothing in the Constitution was intended to "prejudice any claims either of the U.S. or of any particular State" — on the presumption that the original states would cede (if they hadn't already) title to those western lands to the central government.

The new federal government took various actions regarding lands, including settling conflicting claims, granting lands for military service and other purposes, and selling the remaining lands under various programs. The first land offices to resolve land claims and sales were established by Congress in Ohio in 1800,15 and the General Land Office was established in 1812 to administer the disposal of federal lands.

Congress enacted numerous laws to grant, sell, or otherwise transfer federal lands into private ownership, including the Homestead Act of 1862, the General Mining Law of 1872, and many others.16 Land sales were a significant source of federal revenues during the 1830s, while grants to railroads in the 1870s were major incentives to improve the nation's transportation system. Nearly 816 million acres of the public domain lands were transferred to private ownership between 1781 and 1995.1'7 Most (97%) occurred before 1940; homestead entries, for example, peaked in 1910 at 18.3 million acres, but dropped below 200,000 acres annually after 1935,18 because the best agricultural lands were already taken. The federal government also granted 328 million acres to the states.19 The single largest state grant was in 1958; under the Alaska Statehood Act 20 the State of Alaska could select up to 103.35 million acres (under certain constraints). Also, the Alaska Native Claims Settlement Act 21 authorized various regional and village native corporations to select 40 million acres of federal land (within the constraints identified in the Act).

Federal Land Withdrawals

As noted, throughout much of our early history, the policy of the federal government was generally to dispose of many of the lands it acquired, particularly to raise revenues. However, from the earliest times, the government also reserved or withdrew for retention (thus preventing their sale or transfer) certain federal lands or interests in lands for future grants or various federal purposes. The Land Ordinance of 1785 reserved not only section 16 of every township to maintain public schools, but also a "third part of all gold, silver, lead and copper mines, to be sold, or otherwise disposed of as Congress shall hereafter direct."22 The Act of 1796, that made permanent many of the provisions of the Land Ordinance of 1785, also provided that "Instead of reserving scattered sections for future disposal by Congress, the four central sections [of each township] were to be retained."23 In 1798, Congress authorized and funded military reservations for the erection of fortifications, at the discretion of the President.24 Additional mineral reservations and special disposal provisions were also enacted.25

Increasingly over time, Congress withdrew lands (removed lands from disposal under some or all of the disposal laws) or reserved lands (withdrew lands for a particular national purpose). Early withdrawals were primarily to preserve lands for future disposals or for Indian trading posts, for military and mineral reservations, or for other public purposes.26 In 1817, Congress authorized the selection and reservation of lands to supply timber for naval uses.27 The establishment of Yellowstone National Park in 1872 28 led the way to preserving certain lands for recreation and for the future, with other national parks designated later, and eventually leading in 1916 to the National Park Organic Act 29 and to the National Park System (which in addition to the parks includes monuments, recreation areas, battlefields, historic sites, and numerous other designations).30 In 1891, the President was authorized to protect other federal lands by proclaiming forest reserves;31 this eventually led to the creation of the National Forest System. Then, in 1903, President Theodore Roosevelt began the practice of withdrawing federal lands to protect wildlife habitats that led to the National Wildlife Refuge System. Today, the National Park Service, the U.S. Forest Service, and the U.S. Fish and Wildlife Service manage the lands to preserve parks, conserve forests, and protect wildlife and wildlife habitat, respectively. These three agencies manage 357 million acres, or 54% of all federal lands. Additional, though more modest, withdrawals have been made for military reservations and for other federal facilities.

Federal Land Retention

As noted earlier, the General Land Office had been established in 1812 to oversee the disposal of the public lands through land sales, homesteading, grants to railroads and to states, and other means. The Office's Division of Forestry was responsible for the forest reserves beginning with their establishment in 1891, but in 1905 this division was transferred and merged into the Department of Agriculture's Bureau of Forestry to form the new U.S. Forest Service.32 The General Land Office remained in the business of principally overseeing the disposal of many of the remaining federal lands and maintaining federal title records and documents.

The U.S. Grazing Service was created in 1934 to administer many of the public lands for livestock grazing under the authority of the Taylor Grazing Act of 1934.33 This Act was intended to remedy the deterioration of the remaining public lands apparently due to overgrazing and the drought and depression of the 1920s and 1930s. It was the first direct authority for federal management of these lands which previously were freely available for transient grazing, and reflected the significant decline in homestead entries (because most of the lands that could support a family farm had already been transferred into private hands). Although the Act referred to management of the grazing lands, "pending their disposal," the Act implicitly began the shift in federal law toward ending disposals and retaining lands in federal ownership. In part because of controversies over its management efforts, the Grazing Service was terminated in 1946 by merging it with the General Land Office to form the Bureau of Land Management (BLM).34

The debate over federal retention of the remaining public lands endured for decades. The shift toward explicit federal policy to retain these lands continued with two laws enacted in 1964. One created the Public Land Law Review Commission (PLLRC) to review existing public land laws and regulations, and to examine the policies and practices of the federal agencies which administered the federal lands. The 1970 PLLRC report contained 137 specific legal and policy recommendations for improving federal land management.35 The first recommendation, on page I of the report, was that the existing federal lands should generally be retained in federal ownership:

We, therefore, recommend that:

The policy of large-scale disposal of public lands reflected by the majority of statutes in force today be revised and that fixture disposal should be only those lands that will achieve maximum benefit for the general public in non-Federal ownership, while retaining in Federal ownership those whose values must be preserved so that they may be used and enjoyed by all Americans.

The other 1964 law, the Classification and Multiple Use Act, directed the BLM to classify lands for retention or for disposal and to manage the lands for multiple purposes, pending the PLLRC recommendations. By 1970, when the PLLRC report was released, the BLM had classified more than 90% of the remaining unreserved public domain lands for retention. This reflected the decline in federal land disposal (to near zero in the 1960s), because virtually all the lands that could support agricultural operations had already been claimed.

The future of the public lands, including the issue of retention or disposal, was debated in three Congresses following the release of the PLLRC report. Finally, enactment of the Federal Land Policy and Management Act of 1976 (FLPMA) formally ended the previous disposal policy, expressly declaring that the national policy was generally to retain the remaining lands in federal ownership.36 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; ...

FLPMA also amended many previous management authorities and public land and resource laws and repealed most land disposal laws. Section 702 repealed the many statutes and sections authorizing homesteading, although the effective date of the repeal was delayed for 10 years in Alaska. Section 703 similarly repealed (and delayed the effective date in Alaska) most other statutes authorizing land sales or transfers. FLPMA did authorize the sale of some specific tracts of public lands "at a price not less than their fair market value" under conditions specified in the Act (and discussed below, under current federal land disposal authorities).

The BLM currently manages 267 million acres of land — 40.6% of all federal land and 11.8% of all land in the United States. A third of the BLM lands, 88.3 million acres, are in Alaska. The remainder are substantially concentrated in 11 western states, and account for significant amounts of land in most of those states. The BLM also manages 1.5 million acres in states east of the Rocky Mountains, including more than 100,000 acres in each of six states: Louisiana, Arkansas, South Dakota, Wisconsin, Minnesota, and Alabama. BLM lands are administered for the sustained yield of multiple uses (including recreation, livestock grazing, timber harvesting, watershed protection, and wildlife and fish habitat management), although users typically want higher outputs than the BLM provides, while environmental groups typically want more protection (and lower outputs).

The following table summarizes the current federal lands reserved for, or otherwise retained or acquired by the four major federal management agencies.

Table 1. Federal Lands Administered by Major Agencies, as of September 30, 1997
(in millions of acres and percent of total land)

State/Region National Park Service USDA Forest Service Fish and Wildlife Service Bureau of Land Mgmt. Federal Total 37
Alaska 50.720 21.969 76.898 86.908 242.796 66.4%
Western 11 19.739 141.089 7.410 175.490 360.562 47.9%
Other 38 6.998 29.000 8.566 1.532 53.898 4.6%
Total 77.457 191.786 92.874 263.929 657.257 28.9%

"The Sagebrush Rebellion"

At various times, concerted efforts have been made to have the remaining unreserved public domain lands turned over to the states. Until 1976, many westerners retained the hope that the substantial federal presence might be reduced through additional federal land transfers to private or state ownership. However, FLPMA repealed most of the authorities for such ownership transfers, and established an official policy of retaining the remaining lands. Thus, these western interests faced a future with a substantial and permanent federal presence — more than 50% of the land in the western states, and as much as 83% in Nevada, 68% in Alaska, 64% in Utah, and 62% in Idaho. The "Sagebrush Rebellion" was largely a reaction to these facts.

In 1979, Nevada enacted a state law asserting state title and management and disposal authority over public (BLM) lands within Nevada's boundaries.38 Similar state laws asserting state authority over the public lands were passed in Arizona, New Mexico, Utah, and Wyoming.39 Other attempts to enact similar state laws were less successful. A 1979 California bill was vetoed (and the veto was sustained), and a Washington State measure contingent on an amendment to the state's constitution failed.

Questions of title have been litigated several times in Nevada. One 1981 case challenged the constitutionality of the federal land retention policy in §102(a) of FLPMA. The state argued that the federal government could only lawfully hold public lands in a temporary trust pending eventual disposal, and that retention of the lands violated the Tenth Amendment and "equal footing doctrine" rights. The court dismissed the case for failure to state a claim upon which relief could be granted, finding that any limitations on holding the 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 court cited the cases discussed previously in the Constitutional Basis section of this report and noted that the equal footing doctrine applied only to political and sovereignty rights, and not to economic or geographic equality, and that the Constitution reserved to Congress the authority to decide which federal lands to sell or to keep. This case was affirmed on appeal.40

Title issues arose again in a case in which the plaintiffs asserted that they did not need a grazing permit to graze in a national forest because the state of Nevada owned the lands.41 Both the lower and appellate courts again rejected the arguments that Nevada was entitled to the lands under the equal footing doctrine, or that the federal government had any obligation to turn lands over to states.

In 1993, Nye County, NV, began to take actions with respect to federal lands, including bulldozing roads on federal lands without permits, based on the assertion that Nevada held title to the lands. The United States filed suit seeking a declaratory judgment that it owns and has authority to manage the disputed lands within Nye County and that a county resolution regarding roads and rights of way was preempted as to roads and corridors for which no valid right of way exists. The United States was granted summary judgment on these issues.42

County governments in several states also have asserted authority over federal lands and attempted to specify management of those lands, following the example of Catron County, NM.43 Laws that impose direct management requirements on the lands or require local approvals for land use changes in conflict with federal laws, regulations, or purposes, etc. almost certainly are preempted under the Supremacy Clause (Article VI, Cl. 2) of the Constitution.44

The cases make it clear that a new initiative to reduce federal land ownership would require an Act of Congress, an avenue that has also been pursued. Bills were introduced in the 95th, 96th, and 97th Congresses to change the retention policy in FLPMA. In general, these bills would have authorized transferring the unreserved lands to the states upon application, if the state had a land management agency with a multiple-use mandate. However, none of these bills was reported by a committee, and thus, none saw any floor action.

President Reagan attempted to address the issue administratively in the early 1980s. That Administration's concept of reducing federal influence in the west slowly changed from transferring the lands free of charge to selling the lands at fair market value. Several factors stimulated this shift, including pressure from Congress. Eventually, President Reagan issued an Executive Order establishing the Property Review Board to review federal real property for potential disposal.45 It was not clear how this initiative related to existing laws such as FLPMA that provide statutory criteria for reviewing lands for disposal and which contained an express policy of retention. The "Asset Management" program eventually stalled, however, because the Administration demanded clear congressional authorization for land disposal before it would identify which lands might be disposed of, while Congress demanded that the Administration identify which lands might be disposed of before it would consider legislation to authorize such disposal.46

Recent Efforts to Force Divestiture of the Remaining Federal Lands

Efforts to legislate a reduction in federal land ownership were revived in 1994 with the election of Republican majorities in the House and the Senate, and the vision of shifting federal control toward the states was embodied in the House Republican "Contract With America." Organizations supporting this vision, such as the Cato Institute, have advocated extensive disposal of federal lands through privatization and/or transfer to state ownership or management. Several bills were circulated or introduced in the 104th Congress for the wholesale transfer of BLM lands or for the transfer of ownership or management of specific federal units (e.g., specific wildlife refuges or National Park System units in one state).47 Hearings were held on some of the bills, but none was reported by a committee and none saw any floor action.

General legislation to dispose of federal land saw less congressional attention in the 105th Congress. As is common in most Congresses, numerous bills to transfer individual parcels (often to local governments for public purposes) were introduced. One bill — S. 1254, the Federal Lands Management Adjustment Act — would have authorized management of certain Forest Service or BLM lands for renewable 10-year terms by a state or a qualified non-profit organization, but with legislative authorization of each management transfer. Eventual title transfers would also have required legislative authorization. No hearings were held on this bill.

To date in the 106th Congress, limited bills to transfer federal lands have been introduced, but no general federal land disposal legislation has been offered.

Current Federal Land Disposal Authorities

The majority of federal lands are administered by four agencies:

• the Bureau of Land Management, 264 million acres, predominately (99%) in the 12 western states;
• the Forest Service, 192 million acres, substantially (74%) in the 11 contiguous western states;
• the National Park Service, 77 million acres, substantially (65%) in Alaska; and
• the Fish and Wildlife Service, 93 million acres, substantially (83%) in Alaska. Under certain conditions, as described below, these lands can be sold or transferred to other landowners.

Bureau of Land Management. The BLM can dispose of public lands under several authorities. The primary means of disposal is through exchanges under FLPMA. Three other general disposal authorities are: (1) sales under FLPMA; (2) patents under the General Mining Law of 1872; and (3) transfers to other governmental units for public purposes.48

Section 203 of FLPMA authorizes the BLM to sell certain tracts of public land that meet specific criteria (43 U.S.C. §1713(a)):

A tract of the public lands (except land in units of the National Wilderness Preservation System, National Wild and Scenic Rivers Systems [sic}, and National System of Trails) may be sold under this Act where, as a result of the land use planning required under section 202 of this Act, the Secretary determines that the sale of such tract meets the following disposal criteria:

   (1) such tract because of its location or other characteristics is difficult and uneconomic to manage as part of the public lands, and is not suitable for management by another Federal department or agency; or
    (2) such tract was acquired for a specific purpose and the tract is no longer required for that or any other Federal purpose; or
    (3) disposal of such tract will serve important public objectives, including but not limited to, expansion of communities and economic development, which cannot be achieved prudently or feasibly on land other than public land and which outweigh other public objectives and values, including, but not limited to, recreation and scenic values, which would be served by maintaining such tract in Federal ownership.

The size of the tracts for sale is to be determined by "the land use capabilities and development requirements." Proposals to sell tracts of more than 2,500 acres must first be submitted to Congress, and such sales may be made unless disapproved by Congress.49 Tracts are to be sold at not less than their fair market value, generally through competitive bidding, although modified competition and non-competitive sales are allowed.50

The General Mining Law of 1872 allows access to "hardrock" minerals on federal lands that have not been withdrawn from entry. Minerals within a valid mining claim can be developed without obtaining full title to the land. However, with evidence of valuable minerals and sufficient developmental effort, mining claims can be patented, with full title transferred to the claimant upon payment of the appropriate fee — $5.00 per acre for vein or lode claims (30 U.S.C. §29) or $2.50 for placer claims (30 U.S.C. §37). Non-mineral lands used for associated milling or other processing operations can also be patented (30 U.S.C. §42). Patented lands may be used for purposes other than mineral development.

The Recreation and Public Purposes Act (43 U.S.C. §869) authorizes the Secretary, upon application by a qualified applicant, to:

dispose of any public lands to a State, Territory, county, municipality, or other State, Territorial, or Federal instrumentality or political subdivision for any public purposes, or to a nonprofit corporation or nonprofit association for any recreational or any public purpose consistent with its articles of incorporation or other creating authority.

The Act specifies conditions, qualifications, and acreage limitations for transfer, and provides for restoring the lands to the public domain if conditions are not met.

Forest Service. The Secretary of Agriculture has numerous authorities to dispose of NFS lands, all constrained in various ways and seldom used. In 1897, the President was authorized (16 U.S.C. §473):

to revoke, modify, or suspend any and all Executive orders and proclamations or any part thereof issued under section 471 of this title [which had authorized the President to create forest reserves], from time to time as he deems best for the public interests. By such modification he may reduce the area or change the boundary lines or may vacate altogether any order creating a national forest.

The 1897 Act also provided for the return to the public domain of lands better suited for agriculture or mining. These provisions on modifying earlier reservations have not been repealed, but §9 of later-enacted NFMA prohibits the return to the public domain of any land reserved or withdrawn from the public domain, except by an Act of Congress (16 U.S.C. §1609).

The 1911 Weeks Law authorizes the Secretary to dispose of land "chiefly valuable for agriculture" which was included in lands acquired (inadvertently or otherwise), if agricultural use will not injure the forests or stream flows and the lands are not needed for public purposes (16 U.S.C. §519).

The Bankhead-Jones Farm Tenant Act of 1937 authorizes the disposal of lands acquired under its authority, with or without consideration, "under such terms and conditions as he (the Secretary of Agriculture) deems will best accomplish the purposes of this" title, but "only to public authorities and only on condition that the property is used for public purposes" (7 U.S.C. §1011(c)). However, the Forest Service has adopted regulations staling that the Bankhead-Jones lands comprising the National Grasslands will be held permanently (36 C.F.R. §213). The BLM also manages many of the Bankhead-Jones lands.

The 1958 Townsites Act authorizes the Secretary to transfer up to 640 acres adjacent to communities in Alaska or the 11 western states for townsites, if the "indigenous community objectives... outweigh the public objectives and values which would be served by maintaining such tract in Federal ownership" (16 U.S.C. §478a). There is to be a public notice of the application for such transfer, and upon a "satisfactory showing of need," the Secretary may offer the land to a local governmental entity at "not less than the fair market value."

Finally, the 1983 Small Tracts Act authorizes the Secretary to dispose of three categories of land, by sale or exchange, if valued at no more than $150,000 (16 U.S.C. §521e):

(1) parcels of 40 acres or less interspersed with or adjacent to lands transferred out of federal ownership under the mining laws and which are inefficient to administer because of their size or location;

(2) parcels of 10 acres or less encroached upon by improvements based in good faith upon an erroneous survey or other land description; or

(3) road rights-of-way substantially surrounded by non-federal land and not needed by the federal government, subject to the right of first refusal for adjoining landowners.

The land can be disposed of for cash, lands, interests in land, or any combination thereof for the value of the land being disposed (§52 Id) plus "all reasonable costs of administration, survey, and appraisal incidental to such conveyance" (§521f).

Fish and Wildlife Service (FWS). With certain exceptions, wildlife refuge lands can be disposed only by an Act of Congress (16 U.S.C. §668dd(a)(5) and (6)). For refuge lands reserved from the public domain, FLPMA prohibits the Secretary from modifying or revoking any withdrawal which added lands to the NWRS (43 U.S.C. §1714(j)). For acquired lands, disposal is allowed only if: (1) the disposal is part of an authorized land exchange (16 U.S.C. §668dd(a)(6) and (b)(3)); or (2) the Secretary determines the lands are no longer needed and the Migratory Bird Conservation Commission approves (§668dd(a)(5)). In the latter case, the disposal must recover the acquisition cost or be at the fair market value (whichever is higher).

National Park Service. Units and lands of the National Park System that were established by Acts of Congress can only be disposed of by Acts of Congress. Preservation of park units is a management goal and several laws limit the power of the Secretary to change park boundaries. Non-NPS lands encompassed by minor boundary adjustments can be acquired through land exchanges, but "the Secretary may not alienate property administered as part of the national park system in order to acquire lands by exchange" (16 U.S.C. §460/-9(c)). Finally, proclaimed national monuments cannot be returned to the public domain for disposal under the BLM land disposal authorities; specifically, "The Secretary shall not ... modify or revoke any withdrawal creating national monuments under the Act of June 8, 1906 [the Antiquities Act]" (43 U.S.C. §17140)).

Current Federal Land Acquisition Authorities

Bureau of Land Management. BLM has broad, general authority to acquire lands principally under §205 of FLPMA. Specifically, the Secretary of the Interior is authorized (43 U.S.C. §1715(a)):

to acquire pursuant to this Act [FLPMA] by purchase, exchange, donation, or eminent domain, lands or interests therein: Provided, That with respect to the public lands, the Secretary may exercise the power of eminent domain only if necessary to secure access to public lands, and then only if the lands so acquired are confined to as narrow a corridor as is necessary to serve such purpose.

BLM may acquire land or interests in land, especially inholdings, to protect threatened natural and cultural resources, increase opportunities for public recreation, restore the health of the land, and improve management of these areas. The agency principally acquires land by exchange, and undertakes approximately 60 land exchanges a year.51 Although FLPMA and NFMA were amended in 1988 to "streamline ... and expedite" the process, exchanges may still be time consuming and costly because of problems related to land valuation, cultural and archaeological resources inventories, and other issues.

Forest Service. The Secretary of Agriculture has numerous authorities to add lands to the NFS. The first and broadest authority was in the Weeks Law of 1911 (as amended by NFMA; 16 U.S.C. §515):

The Secretary is hereby authorized and directed to examine, locate, and purchase such forested, cut-over, or denuded lands within the watersheds of navigable streams as in his judgment may be necessary to the regulation of the flow of navigable streams or for the production of timber.

Originally, the acquisitions were to be approved by a National Forest Reservation Commission, but the Commission was terminated in 1976 by §17 of NFMA.

Other laws also authorize land acquisition for the national forests, typically in specific areas or for specific purposes. For example, §205 of FLPMA authorizes the acquisition of access corridors to national forests across non-federal lands (43 U.S.C. §1715(a)).

Finally, the Bankhead-Jones Farm Tenant Act of 1937 authorizes and directs the Secretary of Agriculture to establish (7 U.S.C. §1010):

a program of land conservation and land utilization, in order to correct maladjustments in land use, and thus assist in controlling soil erosion, reforestation, preserving natural resources, protecting fish and wildlife, developing and protecting recreational facilities, mitigating floods, preventing impairment of dams and reservoirs, developing energy resources, conserving surface and subsurface moisture, protecting the watersheds of navigable streams, and protecting public lands, health, safety, and welfare ....

Initially, this Act authorized the Secretary to acquire submarginal lands and lands not primarily suitable for cultivation (§1011 (a)), but this provision was repealed in 1962. This authority allowed the agency to acquire and establish the 20 national grasslands and 8 land utilization projects that account for 2% of the National Forest System. In addition, millions of acres acquired under this authority have been transferred to the BLM.

Fish and Wildlife Service (FWS). Growth of the National Wildlife Refuge System may come about in a number of ways. Some units have been created by specific Acts of Congress (e.g.. Protection Island NWR in Washington, Bayou Sauvage NWR in Louisiana, or John Heinz NWR in Pennsylvania).52 Units have also been created by executive order; FLPMA authorizes the Secretary of the Interior to withdraw lands from the public domain for creating or adding to refuges (which would be an interagency transfer, rather than actual federal land acquisition), although all withdrawals exceeding 5,000 acres are subject to congressional approval procedures (43 U.S.C. §1714(c)).53 Other laws provide general authority to expand the refuge system, including the Fish and Wildlife Coordination Act, the Fish and Wildlife Act of 1956, and the Endangered Species Act.

The primary FWS land acquisition authority is the Migratory Bird Treaty Act (MBTA) of 1929. This Act authorizes the Secretary to recommend areas "necessary for the conservation of migratory birds" to the Migratory Bird Conservation Commission, after consulting with the relevant governor (or state agency) and appropriate local government officials (16 U.S.C. §715c). The Secretary may then purchase or rent areas approved by the Commission (§715d(l)), and "acquire, by gift or devise, any area or interest therein ..." (§715d(2)).54 In contrast to land acquisition for the National Park System (where with minor exceptions, the lands must be within the boundaries of units set by Congress), FWS can acquire new lands that may comprise a new refuge under the general FWS authorities just cited, as well as under the Endangered Species Act and certain other laws. The MBTA is the most frequently used authority for funding reasons. (See below.)

Lands and interests in lands to create specific NWRS units may be acquired from another agency, accepted as donations, or purchased. Purchases may be made on a willing buyer/willing seller basis or under condemnation authorities, although formal condemnation is very rarely used.55 In general, new acquisitions usually result from transfers from the public domain or lands purchased outright (occasionally via condemnation) from other owners. These purchases are rarely large. In FY1997, 99,762 acres were acquired (as opposed to transferred from other federal agencies), while $50.9 million was spent on acquisition.56

The purchase of refuge lands is financed primarily through two funding sources: the Migratory Bird Conservation Fund (MBCF) and the Land and Water Conservation Fund (LWCF). MBCF acquisitions have emphasized wetlands essential for migratory waterfowl, while LWCF acquisitions have encompassed the gamut of NWRS purposes. MBCF is supported from three sources (amounts in parentheses are FY1997 receipts deposited into the MBCF):

• the sale of "hunting and conservation stamps" (better known as duck stamps) purchased by hunters, certain visitors to refuges, stamp collectors, and others ($22.5 million);
• import duties on arms and ammunition ($18.5 million); and
• 70% of certain refuge entrance fees ($0.83 million).

MBCF funds are permanently appropriated to the extent of these receipts, and after paying the engraving, printing, and related costs, may be used for the "location, ascertainment, and acquisition of suitable areas for migratory bird refuges ... and administrative costs incurred in the acquisition" (16 U.S.C. §718d(b)). However, the acquisition must be "approved by the Governor of the State or appropriate State agency" (§715k-5). The predictability of MBCF funding makes it assume special importance in the FWS budget. This contrasts with LWCF funding, which requires annual appropriations and has fluctuated significantly from year to year. In FY1997, the appropriations for the two sources were similar in magnitude: $41.8 million from the MBCF, and $44.5 million from the LWCF for FWS land acquisition.

National Park System. Most units of the National Park System have been created by Acts of Congress. Congress typically asks the NPS to evaluate recommendations on proposed additions to the System, and then identifies the units and boundaries and authorizes the NFS to acquire the nonfederal lands within those boundaries. The principal funding source for land acquisition has been the Land and Water Conservation Fund. In addition, the Secretary is authorized to make minor boundary adjustments for "proper preservation, protection, interpretation, or management" and to acquire the nonfederal lands within the adjusted boundary (16 U.S.C. §460/-9(c)).

The President also is authorized to proclaim national monuments from existing federal lands under the Antiquities Act of 1906, and more than 100 monuments have been created by presidential proclamations. (Again, this is not necessarily actual federal land acquisition.) This authority was used frequently (for proclaiming 87 national monuments) before 1940, but has only been used three times (to establish 17 monuments) since 1961. Most national monuments are administered by NFS, but five are administered by other federal agencies — four congressionally designated monuments in the national forests of Alaska, Washington, and Oregon and the presidentially proclaimed Grand Staircase-Escalante National Monument on BLM lands in Utah. (Earlier monuments established by proclamation on non-NFS lands were subsequently transferred to NFS in government reorganizations.)

Finally, the NFS is to consider possible additions to the National Park System. The NFS is directed "to investigate, study, and continually monitor the welfare of areas that could potentially be added to the System, and to report to Congress (16 U.S.C. §la-5(a)). The general management plan for each unit is to include "indications of potential modifications to the external boundaries of the unit, and the reasons therefor" (§la-7). The Secretary is to prepare a "systematic and comprehensive review of certain aspects of the National Park System" in a report to Congress at least every 3 years (§la-9). This report is to include a "comprehensive list of all authorized but unacquired lands within the exterior boundaries of each unit" (§la-l l(a)) and a "priority listing of all such unacquired parcels" (§ la-I l(b)). Finally, the Secretary is to identify- criteria to evaluate proposed boundary changes (§la-12).

Footnotes

1 This excludes the purchase and release of the Philippines and acquisition of other territories outside North America, such as Puerto Rico and Guam.

2 Kentucky and Tennessee were created directly from lands ceded by the original states, without intervening federal ownership.

3 On this subject, see: Report of the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas within the States, Jurisdiction over Federal Areas within the States, April 1956.

4 California Coastal Commission v. Granite Rock Company, 480 U.S. 572, 581 (1987), citations omitted.

5 Kleppe v. New Mexico, 426 U.S. 529, 542-543 (1976).

6 44 U.S. (3 How.) 21 (1845).

7 United States v. Texas, 339 U.S. 707, 716 (1950), reh'g denied, 340 U.S. 907 (1950).

8 United States v. California, 332 U.S. 19, 29-39 (1947).

9 See United States v. Gratiot, 39 U.S. (14 Pet.) 526 (1840); Camfield v. United States, 167 U.S. 518 (1897); Kleppe, supra, and Nevada v. United States, 512 F. Supp. 166 (D. Nev. 1981), aff'don other grounds, 699 F. 2d 486 (9th Cir. 1983).

10 Paul W. Gates. History of Public Land Law Development. Written for the Public Land Law Review Commission. Washington, DC: U.S. Govt. Print. Off., Nov. 1968. p. 51, quoting Worthington C. Ford, et al. (eds.). Journals of the Continental Congress, vol. 18: 915.

11 Gates, History of Public Land Law Development, pp. 59-71.

12 These provisions were subsequently enacted in various statutes following ratification of the Constitution, beginning with the Land Act of 1796 (Act of May 18, 1796, ch. 29; I Stat. 464) and the Ohio Enabling Act (Act of April 30, 1802, ch. 40; 2 Stat. 173). See also subsequent state enabling acts.

13 Gates, History of Public Land Law Development, pp. 73-74.

14 Gates, History of Public Land Law Development, p. 74.

15 Act of May 10, 1800, ch. 55; 2 Stat. 73.

16 Respectively: Act of May 20, 1862, ch. 75; 12 Stat. 392; and Act of May 10, 1872, ch. 152; 17 Stat. 91.

17 U.S. Dept. of the Interior, Bureau of Land Management. Public Land Statistics, 1994/ 1995. Washington, DC: U.S. Govt. Print. Off, Sept. 1996. p. 5.

18 U.S. Dept. of Commerce, Bureau of Census. Historical Statistics of the United States, Colonial Times to 1970. Washington, DC: U.S. Govt. Print. Off., 1976. H.Doc. No. 93-78 (93rd Cong., 1st Sess.). pp. 428-429.

19 Public Land Statistics, 1994/1995, p. 5.

20 Act of July 7, 1958, P.L. 85-508; 72 Stat. 339.

21 Act of Dec. 18, 1971, P.L. 92-203; 85 Stat. 690.

22 Gates, History of Public Land Law Development, p. 65.

23 Gates, History of Public Land Law Development, p. 125.

24 Act of May 3, 1798, ch. 37; I Stat. 554.

25 See, for example. Act of March 3, 1807, ch. 49; 2 Stat. 448.

26 For examples, see, respectively: Act of April 18, 1796, ch. 13, I Stat. 452; Act of May 3, 1798, ch. 37, I Stat. 554; Act of March 26, 1804, ch. 35, 2, Stat. 277; and Act of March 3, 1807, ch. 34, 2 Stat. 437. Discussed in: Charles F. Wheatley, Jr., and Robert L. McCarty. Study of Withdrawals and Reservations of Public Domain Lands. Volume I, Part I, Summary. Prepared for the Public Land Law Review Commission. Washington, DC: Sept. 1969. pp. 55-60.

27 Act of March 1, 1817, ch. 22; 3 Stat. 347. Repealed in 1932.

28 Act of March 1, 1872, ch. 24; 17 Stat. 32.

29 Act of Aug. 25, 1916, ch. 408; 39 Stat. 535.

30 Two other National Park System units had been reserved earlier — Hot Springs, AR, in 1832, and Yosemite, CA, in 1864 — but were not designated as national parks until after the establishment of Yellowstone (1921 and 1890, respectively).

31 Act of March 3, 1891, ch. 561; 26 Stat. 1103.

32 Act of Feb. 1, 1905, ch. 288; 33 Stat. 628.

33 Act of June 28, 1934, ch. 865; 48 Stat. 1269.

34 Executive Reorganization No. 3 of June 6, 1946.

35 One Third of the Nation's Land: A Report to the President and to the Congress by the Public Land Law Review Commission at 342, Washington, D.C., U.S. Govt. Print. Off., June 1970.

36 Act of Oct. 21, 1976, P.L. 94-579; 90 Stat. 2743, codified at 43 U.S.C. §§1701 et seq. Section 103(e) of FLPMA also defines "public lands" as "any land or interest in land owned by the United States ... and administered by ... the Bureau of Land Management, without regard to how the United States acquired ownership, except" for the Outer Continental Shelf and lands held in trust for Native Americans. This reflects BLM administration of not only the remaining public domain lands, but also many lands acquired under various authorities, such as the Bankhead-Jones Farm Tenant Act (Act of July 22, 1937, ch. 517; 50 Stat. 522).

37 Data from: U.S. General Services Administration. Summary Report of Real Property Owned by the United States Throughout the World as of September 30, 1994. Washington, DC: U.S. Govt. Print. Off., Aug. 1996. These figures exceed the total of the four agencies listed, because of other federal properties (military installations, federal buildings, etc.).

38 Nev. Rev. Stat. §§ 321.596 - 321.599. "Public lands" excluded lands in congressionally authorized national parks and monuments, national forests, wildlife refuges, lands acquired by the consent of the legislature, lands controlled by the Department of Defense and the Department of Energy and Indian lands. See: Richard D. Clayton, "The Sagebrush Rebellion: Who Should Control the Public Lands?" 1980 UTAH L. REV. 505,512-515 (No. 3,1980).

39 Richard M. Mollison and Richard W. Eddy, Jr„ "The Sagebrush Rebellion: A Simplistic Response to the Complex Problems of Federal Land Management." 19 HARV. JRNL. ON LEGIS. 121-126 (Winter 1982).

40 Nevada State Board of Agriculture v. United States, 512 F.Supp. 166, 167 (D.Nev. 1981), aff'd, 699 F.2d 486 (9th Cir 1983).

41 United States v. Gardner, 903 F. Supp. 1394 (D. Nev. 1995), aff'd, 103 F.3d 1314 (9th Cir. 1997), cert. denied 118 S. Ct. 264. Note that this assertion of title to national forest lands was not made by the state, but rather by the rancher.

42 United States v. Nye County, 920 F. Supp. 1108 (D. Nev. 1996). Nye County made broader assertions than the state itself had made in the statutes referred to previously, in that Nye County denied federal authority over national forests and other reserves as well. Although the court discussed the equal footing doctrine, it was not central to the holding.

43 Catron County Ordinance No. 002-93.

44 Boundary Backpackers v. Boundary County, 913 P. 2d 1141, 128 Id. 371 (Id. 1996). The Supreme Court of Idaho found that Congress had preempted portions of the Boundary County ordinance that purported to exert considerable controls over federal lands, and that the other portions of the local ordinance were not severable. And see Opinion No. 94-01, Attorney General of New Mexico.

45 Executive Order 12348 of Feb. 25, 1982, "Federal Real Property," 47 FED. REG. 40 (Mar. 1,1982): 8547.

46 U.S. General Accounting Office. Forest Service's Program To Identify Unneeded Land For Potential Sale Is Stalled. GAO/RCED-85-16. Washington, DC: Nov. 6, 1984.

47 See CRS Report 96-919 ENR, Federal Land Disposal: Legislative Initiatives in the 104th Congress.

48 The Homestead Act and many other authorities for disposing of the public lands were repealed by FLPMA in 1976, with a 10-year extension in Alaska. The General Services Administration has the authority to dispose of surplus federal property under the Federal Property and Administrative Services Act of 1949; however, that Act generally excludes the public domain, mineral lands, and lands previously withdrawn or reserved from the public domain (40 U.S.C. §472(d)(l)).

49 This and certain other provisions of FLPMA may be unconstitutional under immigration and Naturalization Service (INS) v. Chadha, 462 U.S. 919 (1983).

50 Desert lands also can be disposed under other laws. The Carey Act (43 U.S.C. §641) authorizes transfers to a state, upon application and meeting certain requirements, while the Desert Entry Land Act (43 U.S.C. §321) allows citizens to reclaim and patent 320 acres of desert public land. These provisions are seldom used, however, because the lands must be classified as available and sufficient water rights must be obtained.

51 Personal communication with Jeff Holdren, Lands and Realty Group, BLM, U.S. Department of the Interior, Washington, DC, on July 28, 1998.

52 Of the 512 refuges, 34 (6.6%) were created under specific laws naming those particular refuges.

53 These procedures result in termination of executive actions other than by legislation, which may well be unconstitutional in light of INS v. Chadha, 462 U.S. 919 (1983).

54 This authority (and its related funding mechanism) is so commonly used that the distribution of refuges is a good approximation of the four major flyways for migratory waterfowl.

55 Some critics have suggested that the existence of condemnation authority has clouded some land purchases, to the extent that some sellers feel that they have little real choice in the decision to sell, even if condemnation authority was not formally used. On the other hand, a few sellers have sought formal condemnation since a sale under condemnation may offer important tax advantages under some circumstances. The extent of either of these practices is unclear, but legislation was introduced in the 105th Congress to restrict FWS land acquisitions without specific congressional approval. Ultimately, a provision was added in P.L. 105-277 forbidding the use of "any of the funds appropriated in this Act for the purchase of lands or interests in lands to be used in the establishment of any new unit of the National Wildlife Refuge System unless the purchase is approved in advance by the House and Senate Committees on Appropriations in compliance with the reprogramming procedures contained in Senate Report 105-56." However, because the Migratory Bird Conservation Fund is not appropriated in that act, purchases from that fund are unaffected by this provision.

56 The dollars spent were not necessarily spent on these particular acres, due to a lag between payments and transfers of title, completion of paperwork, etc.