On January 2, 2016 Amnon Bundy led an armed take-over of the Malheur National Wildlife Refuge in Eastern Oregon. The occupation lasted 41 days. One occupier died. According to the Oregonian the cost to taxpayers was at least $3.3 million not counting the subsequent criminal proceedings.
Mr. Bundy said the goal of the takeover was to end Federal ownership of the Refuge and most other Federal land in America. He believes that with a few exceptions Federal land ownership is unconstitutional. Locally Coos County Commissioner candidate Rod Taylor agrees with Mr. Bundy.
However, this legal theory is junk law. In 1999 the Congressional Research Service analyzed this issue and concluded, “It is accepted law that the Federal government may own and hold property as Congress directs.” During the Malheur occupation constitutional law expert and Willamette law professor Susan Lea Smith wrote, “The unmistakable legal reality is that a series of solid, indisputable US Supreme Court cases establishes the Federal government is constitutionally empowered to own land, control that land through federal statutes and regulations as it sees fit, and dispose of that land if it chooses to, “without limitation.”
Those thinking most federal land ownership is unlawful cite the “Enclave Clause” of Article I, Section 8 Clause 17 of the US Constitution. This clause gives Congress authority over Washington, D.C. and property purchased with the consent of the relevant state legislatures.
However, Article IV, Section 3, Clause 2 of the US Constitution, the “Property Clause” says, “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.”
Since 1840 the US Supreme Court and other Federal Courts consistently ruled this clause gives the Federal government broad authority to own and manage land. In 1840 in United States v Gratiot the Supreme Court ruled it was constitutional for the US to own land in Illinois after statehood. The court said the term, “Territory” in the Property Clause meant, “land”.
Since this case Federal courts have repeatedly upheld and broadened Federal authority over its lands. In a public letter to citizens of Harney County during the Malheur take-over public land law expert at Lewis and Clark Law School, Professor Michael Blumm wrote, “Federal authority under the Property Clause is about as settled a principle of Constitutional law as exists.” For those interested in the case law on this issue see the 2016 Report of the Public Land Subcommittee Conference of Western Attorneys General.
Mr. Taylor’s claim that most Federal land ownership is unconstitutional may only be campaign rhetoric. However, people who agree with him hope forced termination of Federal land will solve local economic problems. As this hope dies cynicism and anger will increase.
