Sunday, May 8, 2011

Free the Federal Lands for States to Develop

May 08, 2011
By Samuel J. Mikolaski

When the United States was formed the Congress owned no lands.  It is time to establish the right of land ownership for every state in the union.

Heavy handedness by the White House restricting drilling in the Gulf and Alaska, combined with the day-by-day rise in gasoline prices, have focused public attention as never before on the enervation of local economies by federal bureaucrats and the emasculation of the power of states to create opportunity for their citizens.

Add to that the attempt by the National Labor Relations Board to force Boeing to halt assembly of Boeing's Dreamliner in South Carolina and to transfer that 30% of production to union-controlled plants in Washington State.  We have now reached the point where individual industries will be run by federal government bureaucrats.  Jobs are being lost by the multiplied thousands.  And the creation of jobs by even more multiplied thousands is being hindered.

The best and most comprehensive way economic initiative can be returned to the states has to do with control of the land within each state, which bears directly on oil and gas exploration and drilling.  Recognition of the sovereign right of each state to control the use of lands within its borders would result in an incredible increase in exploration and drilling, the creation of jobs both within and alongside that activity, and would quickly reduce our dependence on OPEC and non-friendly sources of oil and gas.  Just the declared intention to do so would by itself dramatically impact world oil prices.

Consider the tremendous economic activity and the attending prosperity that is now occurring in North Dakota (population less than 700,000).  The key is that oil and gas drilling and related business development are under the mandate of North Dakota, not Washington, DC.

Most Americans do not grasp how much land the Federal Government controls.  The numbers are staggering.  Much of the lands west of a line drawn from the Dakotas to Texas is controlled by the Federal Government.

Here are data of federal ownership and control, as a percentage of each state's land area:

 Nevada 84.5
 Alaska 69.1
 Utah 57.4
 Oregon 53.1
 Idaho 50.2
 Arizona 48.1
 California 45.3
 Wyoming 42.3
 New Mexico 41.8
 Colorado 36.6
 Washington 30.3
 Hawaii 19.4

East of that north/south line only Michigan, North Carolina, and New Hampshire exceed 10%.  The rest are well below 10%, and most are below 5%.  Major oil producing states are free to develop their resources: Texas, 1.9; North Dakota, 2.7; Oklahoma, 3.6; Louisiana, 5.1.

With 84.5% of its lands controlled by the Federal Government, what else can Nevada do but focus on casinos and tourism or become a repository for nuclear waste?  The same applies to Utah.

The vast territory the Federal Government controls in California is larger than many countries.  Combine that with the fact that left-wing special interest groups control the overwhelming Democrat majority in Sacramento and you have the answer as to why businesses are fleeing to business-friendly Nevada, Utah, Arizona, and, especially, Texas.

The truth is that the people of Alaska, Wyoming, Utah, Nevada, and the other states, have vested interests to preserve the environment and develop their natural resources in the best interests of all.  Consider what Alaskans, Texans, Oklahomans, North Dakotans, and Louisianans have done thus far.  If during the past twenty years of fruitless chatter and federal bureaucratic bungling they had been allowed to explore and drill, by now we could have been almost independent of unfriendly fossil fuel sources on a cost basis that would not have emasculated our economy as oil and gasoline prices are presently doing.

Consider the following:

First, Casey Emerson in Montana, educator and former State Senator, has sought legal redress, as law professor Robert G. Natelson detailed in a long  2005/76.2 article in the Colorado Law Review.  Emerson declared:

Title to the land in Montana should have gone to the state as soon as Montana became a state in 1889. And the only real question is: Does the federal government owe us rent on that land since then?

Second, currently in the Utah state representative Roger Barrus secured legislative approval of a Resolution which has now gone on to the Utah Senate.  It calls upon Congress to relinquish to the state of Utah all right, title, and jurisdiction of all public lands controlled by the Federal Government.

Third, Congressman Dan Boren, Oklahoma Democrat, has just issued a strong rebuke to the White House regarding energy policy:

President Obama is completely uninformed about the oil and gas industry. The industry is not made up of just major companies. It is made up of small independent firms like those in Oklahoma that produce a vast majority of our domestic production. For every CEO of a major company, there are literally thousands of blue collar jobs that are affected by his administration's energy policy. It is a policy that is very inadequate and has left so many on the gulf coast unemployed. Americans are tired of empty rhetoric on both sides and want a real plan. If the President doesn't want to stand up and be a leader, then his silence would be appreciated from people who are trying to find solutions.

Most inside-the-beltway arguments against proposals that states take the initiative to explore and drill are condescending and supercilious: We in the Federal Government know what is best.  We can't trust local unsophisticated yahoos on what is best for the environment.  We must consider what is in the interests of all.  Meaning: we want to control the resources and revenues, and we'll send back what money we think you should have.

No one can predict what the future of such states rights initiatives can be in light of on-going discussion about the force of the so-called supremacy clause of the Constitution (Article VI, Clause 2), but it is time to re-open the question.  The well-being of America may well depend upon it.

Why should not Texas, or Louisiana, or Alaska simply declare outright ownership of all federal lands within their borders?  That would at once settle the ages-old question of who controls what in any state, it would re-affirm the key-feature federalist concept in the formation of the nation and, at once, open up vast tracts of land for exploration and drilling under state mandate and control.

The last comprehensive federal land ownership report I have been able to track is that of December 3, 2007.

In light of this report four observations seem appropriate: First, at its inception the federal government did not own any land in the original states of the Union.  Second, since 1976 there appears to be an assumption that federal control of remaining fed lands is a done deal.   Third, no legislation for disposition of federal lands has been introduced for over a decade.  Fourth, ownership and control of federal lands is an enduring policy question.

Governors, legislators, and public figures of key states should form a coalition to insist that the Federal Government turn control of land within all states to the people and legislatures of those states.  That was the state of affairs at the founding of the nation.  Why should the rest of us be second class to these?

And our action would not only reflect, it would embody the intentions of our founding fathers enunciated by them at the Constitutional Convention in Philadelphia in 1887, and later ratified in the Constitution (Amendment X), that the State governments:

would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States (The Federalist No. 32).

Samuel Mikolaski is a retired theology professor.  His curriculum vitae and published work are on his websiteHe can be reached at

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