The Property Clause and its Discontents: Lessons from the Malheur Refuge Occupation

The occupation of the Malheur National Wildlife Refuge in Oregon by a group of armed militants led by Ammon Bundy during January 2016 spotlighted public land management to a largely oblivious American public. The militants’ month-long occupation was only the latest of several armed confrontations in recent years, one of them at Bundy’s father’s ranch in Nevada. What made the Malheur incident unusual were not only the length of the occupation but also the claims of the militants that their occupation was based on constitutional principles. We examine those claims in this article and find them meritless, wholly inconsistent with a long line of Supreme Court interpretations of the plenary federal power to manage federal public lands under the Property Clause. Although there is no justifiable legal case against federal ownership and management of public lands, the militants and their sympathizers may succeed in their efforts to divest federal land management in the political arena, epitomized by the 2016 Republican Party platform endorsing federal divestiture. Conveying federal lands to the states, as urged particularly by the state of Utah, however, would be a recipe for privatizing a common birthright of all Americans and inconsistent with moral, if not legal obligations to future generations

Antimonopoly in American Public Land Law

Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era. Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from England and Europe. The policy fostered acreage limits in federal grants, a preference for bona fide settlers, and eventually an evolution from land sales to free land under the Homestead Act. Antimonopoly principles were also present in public timber, mining, and rangeland policies from the earliest days. In the Progressive Conservation Era antimonopoly fueled a public land withdrawal and reservation movement, landmark leasing and licensing programs that maintained public control over fuel minerals and waterways, and the first explicit federal policy concern over future generations. The modern era has seen the codification of multiple use management, the enactment of comprehensive land planning statutes, and the rise of multi-species concerns, among other antimonopoly policies. Although antimonopoly policies seem to be under some threat from recent Congresses, a turn toward monopoly would amount to a renunciation of centuries of public land policy. This history strongly counsels against such these proposals as, however imperfectly realized on-the-ground, antimonopoly has been always been cardinal feature of public land law and policy and is deeply embedded in the nation’s identity as a reflection of republican values of individualism and equal opportunity