Order Code RL34267
Federal Land Ownership:
Constitutional Authority and the History of
Acquisition, Disposal, and Retention
December 3, 2007
American Law Division
Ross W. Gorte
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
Federal Land Ownership: Constitutional Authority and
the History of Acquisition, Disposal, and Retention
Federal land ownership began when the original 13 states 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 the purchase of Alaska in 1867. In total, the federal government acquired 1.8
billion acres in North America.
The U.S. Constitution addresses the relationship of the federal government to
lands. Article IV, § 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, § 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. The policy question of whether to acquire more, or to dispose of any
or all, federal lands is left to Congress to decide.
The initial federal policy generally was 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 1.275 billion acres.
However, from the earliest times, Congress also provided for reserving lands for
federal purposes, and over time has reserved or withdrawn areas for such entities as
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.
The “Sagebrush Rebellion” was a collection of unsuccessful state and local
efforts, beginning in 1978, to assert title to federal lands or force their divestiture.
It also included efforts by the Reagan Administration and in Congress to divest of
many federal lands, which also proved unsuccessful.
Legislation on federal land disposal continues to be considered. Bills for the
wholesale disposal have not been introduced in more than a decade, but legislation
has been introduced to limit federal land ownership or acquisition, to expand disposal
authorities (at least in some areas), to sell lands to pay for other activities, and to
accelerate currently authorized land sales. Because the extent of federal lands and
the authority to acquire and dispose of federal lands are an enduring policy question,
Congress faces continued consideration of federal lands legislation.
Federal Land Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Constitutional Basis for Federal Land Ownership:
The Property Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Equal Footing Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Federal Land Disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Federal Land Withdrawals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Federal Land Retention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The “Sagebrush Rebellion” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State and Local Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Administrative Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Congressional Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
List of Tables
Table 1. Federal Lands, by State or Region and by Agency . . . . . . . . . . . . . . . . . 9
Federal Land Ownership:
Constitutional Authority and the History of
Acquisition, Disposal and Retention1
The federal government has retained about a third of the 1.8 billion acres it
acquired in North America. These lands are heavily concentrated in 12 western states
(including Alaska but not Hawaii), where, in total, the federal government owns more
than half of the land (ranging from 30% in Montana to 84% in Nevada).2 Many
western citizens and Members of Congress continue to express concerns about what
they feel is excessive federal influence over their lives and economies, and assert that
the federal government should divest itself of many of these lands. Others support the
policy of retaining these lands in federal ownership. This report describes practices
and authority for federal land ownership and retention. It presents background on
disposal, withdrawal, and retention policies. The report concludes with a summary
of the “Sagebrush Rebellion” (efforts to force divestiture of the federal lands) and
issues for Congress on disposing or retaining federal lands.
Federal Land Acquisition
Federal land ownership began when the original 13 states ceded title to more
than 40% of their “western” lands (237 million acres between the Appalachian
Mountains and the Mississippi River) to the central government between 1781 and
1802. Federal land acquisition from foreign countries began with the Louisiana
Purchase (530 million acres) in 1803 and continued via treaties with Great Britain
and Spain (76 million acres) in 1817 and 1819, respectively. Other substantial
acquisitions (620 million acres), via purchases and treaties, occurred between 1846
and 1853. The last major North American land acquisition by the U.S. federal
government was the purchase of Alaska (378 million acres) in 1867.
At its inception, the federal government did not own land in the original states
of the Union. Rather, ownership of lands between the Appalachian Mountains and
the Mississippi River was ceded by the original states, and additional states were
formed from those lands.3 West of the Mississippi River (except Texas), lands were
This report updates and revises CRS Report RL30126, Federal Land Ownership:
Constitutional Authority; the History of Acquisition, Disposal, and Detention; and Current
Acquisition and Disposal Authorities, by Ross W. Gorte and Pamela Baldwin.
U.S. General Services Administration, Office of Governmentwide Policy, Federal Real
Property Profile, As of September 30, 2004, Table 16, pp. 18-19. Hereinafter referred to as
GSA, Federal Real Property Profile.
Kentucky and Tennessee were created directly from lands ceded by the original states,
primarily acquired by the U.S. federal government from foreign governments, as was
Florida (which was acquired from Spain). The means by which 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:
The Property Clause
The U.S. Constitution addresses the relationship of the federal government to
lands. The Property Clause, Article IV, § 3, Clause 2, gives Congress authority over
the lands, territories, or other property of the United States. It reads:
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
This provision provides broad authority for Congress to govern the lands
acquired by the federal government as it sees fit, and to exercise exclusive authority
to decide on whether or not to dispose of those lands. The U.S. Supreme Court has
described this power as “without limitation,” stating that:
while Congress can acquire exclusive or partial jurisdiction over lands 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.4
One authoritative commentary noted that:
No appropriation of public lands may be made for any purpose except by
authority of Congress.... Congress may limit the disposition of the public domain
to a manner consistent with its views of public policy.... It [the Property Clause]
empowers Congress to act as both proprietor and legislature over the public
domain; Congress has complete power to make those “needful rules” which in
its discretion it determines are necessary. When Congress acts with respect to
those lands covered by the [Property] clause, its legislation overrides conflicting
state laws. Absent action by Congress, however, states may in some instances
exercise some jurisdiction over activities on federal lands.5
without intervening federal ownership.
Kleppe v. New Mexico, 426 U.S. 529, 542-543 (1976).
CRS, “Article IV, Section 3, Clause 2 Analysis,” United States Constitution: Analysis and
Interpretation, footnotes omitted, at [http://www.crs.gov/products/conan/Article04/topic_
Thus, it is accepted law that the federal government may own and hold property as
Congress directs.6 Issues such as whether some or all of the remaining federal lands
should be retained or divested, how to dispose of lands, or whether to acquire
additional federal lands, appear to be policy questions for Congress.
The Equal Footing Doctrine. The equal footing doctrine is based on Article
IV, § 3, Clause 1 of the Constitution. That clause addresses how new states will be
admitted.7 The doctrine means that “equality of constitutional right and power is the
condition of all States of the Union, old and new.”8 It does not mean that physical
or economic situations among states must be the same.9 The term comes from state
enabling acts that included the phrase that the state was admitted “into the Union on
an equal Footing with the original States.”10 The U.S. Supreme Court has clarified
what those rights are.
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. Hagan11 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. Furthermore, in Pollard’s Lessee
v. Hagan, the Supreme Court ruled on the narrow issue of federal ownership of
submerged lands beneath navigable waterways, finding those lands belonged to the
state under the equal footing doctrine because the original states had kept ownership
of the shores of navigable waters and the soils under them.12
See United States v. Gratiot, 39 U.S. (14 Pet.) 526 (1840); Camfield v. United States, 167
U.S. 518 (1897); Kleppe v. New Mexico, 426 U.S. 529 (1976); and Nevada v. United States,
512 F. Supp. 166 (D. Nev. 1981), aff’d on other grounds, 699 F. 2d 486 (9th Cir. 1983).
The clause reads: “New States may be admitted by the Congress into this Union; but no
new State shall be formed or erected within the Jurisdiction of any other State; nor any State
be formed by the Junction of two or more States, or Parts of States, without the Consent of
the Legislatures of the States concerned as well as of the Congress.”
Escanaba v. City of Chicago, 107 U.S. 678, 689 (1883).
United States v. Texas, 339 U.S. 707, 716 (1950), reh’g denied, 340 U.S. 907 (1950).
See, e.g., Nevada Enabling Act, 13 Stat. 30 (1863-1864).
44 U.S. (3 How.) 21 (1845).
See CRS, “Article IV, Section 3, Clause 1 Analysis,” United States Constitution: Analysis
and Interpretation, footnotes omitted, at [http://www.crs.gov/products/conan/Article04/
topic_S3_C1_1_2.html]. The contrary position was premised on dicta (extraneous
discussion on which the court did not rely for its decision) from the case indicating that the
federal government held the lands ceded by the original states only temporarily pending
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 hands — 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.”13
The need for revenues to pay off the national debt was a driving force in the
debate over land disposal systems.14 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 an approach for land disposal
that included several provisions that were used in most federal land disposal
legislation over the next 50 years, including prior rectangular survey before disposal;
public auction of the surveyed lands; a minimum price; and at least one section
(1/36th) of every 6-mile square township “for the maintenance of public schools
within the said township.”15
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 to have 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 (PA) expressed apprehensions about the impact on the
developed East by western congressional representation by unschooled
Worthington C. Ford, et al. (eds.), Journals of the Continental Congress, vol. 18: 915.
Quoted in Paul W. Gates, History of Public Land Law Development, Written for the Public
Land Law Review Commission (Washington, DC: U.S. GPO, November 1968). Hereinafter
referred to as Gates, History of Public Land Law Development.
Gates, History of Public Land Law Development, pp. 59-71.
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; 1 Stat.
464) and the Ohio Enabling Act (Act of April 30, 1802, ch. 40; 2 Stat. 173). See also
subsequent state enabling acts.
frontiersmen.16 This concern was addressed in Article IV, § 3, cl. 1, which requires
the consent of both Congress and the legislatures of the existing states from which
a new state is created. Charles Carroll (MD) noted the concern of small states that
the consent provision, together with the existing state claims to the “western” lands
(i.e., the Ohio Territory), could prevent eventual statehood for those lands, because
the state claiming the land could deny its consent.17 This was then addressed by
requiring the original states to cede title to those western lands to the central
The new federal government took various actions regarding lands, including
settling conflicting claims, granting lands to veterans 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
1800,18 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 and the General
Mining Law of 1872.19 Grants to railroads in the 1870s gave them incentives to
create much of the nation’s transportation system. Nearly 816 million acres of the
public domain lands were transferred to private ownership between 1781 and 2006.20
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 1935,21 because
the best agricultural lands were already taken.
The federal government also granted 328 million acres to the states.22 The
single largest state grant was in 1958.23 Under the Alaska Statehood Act, the State
of Alaska could select up to 103.35 million acres (under certain constraints). Also,
the Alaska Native Claims Settlement Act24 authorized various regional and village
native corporations to select 40 million acres of federal land (within the constraints
identified in the act). Through 2006, 93.1 million acres have been transferred to the
State of Alaska, while 37.7 million acres have been transferred to native
Gates, History of Public Land Law Development, pp. 73-74.
Gates, History of Public Land Law Development, p. 74.
Act of May 10, 1800, ch. 55; 2 Stat. 73.
Respectively: Act of May 20, 1862, ch. 75; 12 Stat. 392; and Act of May 10, 1872, ch.
152; 17 Stat. 91.
U.S. Dept. of the Interior, Bureau of Land Management, Public Land Statistics, 2006, v.
191, BLM/BC/ST-07/001+1165 (Washington, DC: U.S. GPO, April 2007), Table 1-2.
U.S. Dept. of Commerce, Bureau of Census, Historical Statistics of the United States,
Colonial Times to 1970, H.Doc. 93-78 (Washington, DC: U.S. GPO, 1976), pp. 428-429.
Public Land Statistics, 2006, Table 1-2.
Act of July 7, 1958, P.L. 85-508; 72 Stat. 339.
Act of December 18, 1971, P.L. 92-203; 85 Stat. 690.
corporations.25 In total, the federal government has disposed of 1.275 billion acres
of the 1.841 billion acres it acquired from state cessions, foreign treaties, and land
Federal Land Withdrawals
Although early federal policy generally was to dispose of many of the lands it
had acquired, increasingly over time, Congress withdrew lands — removed them
from disposal under some or all of the disposal laws — or reserved lands —
withdrew them for a particular national purpose. For example, the Land Ordinance
of 1785 reserved section 16 of every township to maintain public schools.27 The Act
of 1796 made permanent many of the provisions of the Land Ordinance of 1785, and
provided that “instead of reserving scattered sections for future disposal by Congress,
the four central sections [of each township] were to be retained.”28 In 1798, Congress
authorized and funded military reservations for building fortifications, at the
discretion of the President.29
Early withdrawals were primarily to retain lands for future disposals or for
Indian trading posts, for military and mineral reservations, or for other public
purposes.30 The establishment of Yellowstone National Park in 187231 led the way
to preserving certain lands for recreation and for the future, with other national parks
designated later.32 This eventually led to the National Park Organic Act33 and to the
National Park System. In 1891, the President was authorized to protect other federal
lands by proclaiming forest reserves;34 this eventually led to the creation of the
National Forest System. In 1903, President Theodore Roosevelt began the practice
of withdrawing federal lands to protect wildlife habitats, which 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
Public Land Statistics, 2006, Table 1-2.
Public Land Statistics, 2006, Tables 1-1 and 1-2.
Gates, History of Public Land Law Development, p. 65.
Gates, History of Public Land Law Development, p. 125.
Act of May 3, 1798, ch. 37; 1 Stat. 554.
For examples, see, respectively: Act of April 18, 1796, ch. 13; 1 Stat. 452; Act of May
3, 1798, ch. 37; 1 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 1,
Summary, prepared for the Public Land Law Review Commission (Washington, DC:
September 1969), pp. 55-60.
Act of March 1, 1872, ch. 24; 17 Stat. 32.
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 (in 1921 and 1890, respectively).
Act of August 25, 1916, ch. 408; 39 Stat. 535.
Act of March 3, 1891, ch. 561; 26 Stat. 1103.
forests, and protect wildlife and wildlife habitat, respectively. These three agencies
manage 360 million acres, about 55% of all federal lands. (See Table 1, below.)
Additional, though more modest, withdrawals have been made for military
reservations and for other federal purposes.
Federal Land Retention
As noted earlier, the General Land Office was established as part of the Treasury
Department in 1812 to oversee the disposal of the public lands through land sales,
homesteading, grants to railroads and to states, and other means.35 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.36 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 1934.37
Although the act referred to managing those lands, “pending their disposal,” the act
implicitly began the shift in federal law toward ending disposals and retaining lands
in federal ownership. 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
lands which previously were freely available for transient grazing, and reflected the
significant decline in homestead entries. 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).38
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.39 The first recommendation 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
Gates, History of Public Land Law Development, pp. 127-128. The General Land Office
was moved to the Department of the Interior when it was created in 1849.
Act of February 1, 1905, ch. 288; 33 Stat. 628.
Act of June 28, 1934, ch. 865; 48 Stat. 1269.
Executive Reorganization No. 3 of June 6, 1946.
One Third of the Nation’s Land: A Report to the President and to the Congress by the
Public Land Law Review Commission (Washington, DC: U.S. GPO, June 1970), p. 1.
future 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 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, BLM had classified more than 90% of the remaining unreserved public
domain lands for retention. This reflected the decline in federal land disposal to
nearly zero in the 1960s.
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 generally was to retain the remaining lands in federal ownership.40 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.
BLM currently manages 258 million acres of land — 39.5% of all federal land
and 11.4% of all land in the United States. A third of BLM lands, 83.5 million acres,
are in Alaska. The remainder is substantially concentrated in 11 western states, and
accounts for significant amounts of land in most of those states. BLM also manages
387,721 acres in states east of the Rocky Mountains, with 70% of those lands in
South Dakota. 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 BLM provides, while environmental groups typically want more protection (and
Act of October 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).
Table 1, below, summarizes the current federal lands reserved for, or otherwise
retained or acquired by, the four major federal management agencies.
Table 1. Federal Lands, by State or Region and by Agency
(in millions of acres)
USDA Forest Service
National Park Service
Fish and Wildlife Service
Bureau of Land Management
U.S. Dept. of Agriculture, Forest Service, Land Areas of the National Forest System, as of Sept.
30, 2007, at [http://www.fs.fed.us/land/staff/lar/2007/TABLE_4.htm].
U.S. Dept. of the Interior, National Park Service, National Park Service Listing of Acreage as
of 9/30/07, at [http://www2.nature.nps.gov/stats/acrebypark07fy.pdf]. Includes only NPS lands with
fee simple NPS ownership.
U.S. Dept. of the Interior, Fish and Wildlife Service, Annual Report of Lands Under Control
of the U.S. Fish & Wildlife Service, as of September 30, 2006, pp. 10-11. Includes only federal lands
with FWS primary jurisdiction.
U.S. Dept. of the Interior, Bureau of Land Management, Public Land Statistics, 2006, at
html], Table 1-4.
GSA, Federal Real Property Profile, Table 16, pp. 18-19.
a. Includes Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah,
Washington, and Wyoming.
b. Includes the other 38 states, the District of Columbia, Puerto Rico, Virgin Islands, Guam, and other
c. CRS calculations. Equals the difference between the federal total, from GSA, and the sum of lands
administered by the four federal land management agencies.
The “Sagebrush Rebellion”
At various times, efforts have been made to turn over remaining unreserved
public domain lands 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 — as much as 84% of the land in Nevada, 69% in
Alaska, 57% in Utah, 53% in Oregon and 50% in Idaho.41 The “Sagebrush
Rebellion” was largely a reaction to these facts.
The Sagebrush Rebellion was a collection of efforts to force the federal
government to divest itself of federal lands. These efforts took the form of state and
local legislation, court challenges, federal administrative changes, and efforts at
federal legislation. The target was usually BLM lands, but sometimes included
national forests. 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.”42 This language was part of the enabling act creating the states
and was incorporated into their constitutions; therefore the state laws asserting title
to those federal lands appeared to contravene their own constitutions.43 At any rate,
the state laws were not enforced.44 The rebellion was more effective as a political
movement than a legislative one.45
State and Local Efforts. In 1979, Nevada enacted a state law asserting state
title, and management and disposal authority over public (BLM) lands within
Nevada’s boundaries.46 Similar state laws asserting state authority over public lands
were passed in Arizona, Hawaii, Idaho, New Mexico, North Dakota, Utah, and
Wyoming.47 Other attempts to enact similar state laws were less successful.
Legislation in California, Colorado, and South Dakota was vetoed, although a weaker
version of the California bill was passed that did not require the governor’s
GSA, Federal Real Property Profile.
John D. Leshy, “Unraveling the Sagebrush Rebellion: Law, Politics and Federal Lands,”
University of California Davis Law Review, v. 14 (1980-1981): p. 325. See Nevada
Enabling Act, 13 Stat. 30, § 4 (1863-1864).
Richard M. Mollison and Richard W. Eddy, Jr., “The Sagebrush Rebellion: A Simplistic
Response to the Complex Problems of Federal Land Management,” Harvard Journal on
Legislation, v. 19 (Winter 1982): p. 121.
Jessica Owley Lippmann, “The Emergence of Enacted Conservation Easements,”
Nebraska Law Review, v. 84 (2006): p. 1057.
For a discussion on the economic factors surrounding the Sagebrush Rebellion, see Bruce
Babbitt, “Federalism and the Environment: An Intergovernmental Perspective of the
Sagebrush Rebellion,” Environmental Law, v. 12 (1982).
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?” Utah Law Review, no. 3 (1980): pp.505,
John D. Leshy, Unraveling the Sagebrush Rebellion: Law, Politics, and Federal Lands,
University of California Davis Law Review, v. 14 (1980): pp.317-355.
signature.48 A Washington State measure contingent on an amendment to the state’s
In 1978, the State of Nevada began its court challenge of the constitutionality
of the federal land retention policy in § 102(a) of FLPMA. Nevada 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 equal footing
doctrine. The federal District Court for the District of Nevada dismissed the case for
failure to identify a claim upon which relief could be granted.49 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 court 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
On the symbolic date of July 4, 1993, Nye County (NV) took action on federal
lands, using a bulldozer to open closed roads, based on the assertion that Nevada held
title to the lands. The United States filed suit seeking a declaratory judgment that it
owned and had authority to manage the disputed lands within Nye County and that
the county resolution regarding roads and right of way was invalid. The United
States prevailed in federal court.50
County governments in several states also have asserted local authority over
federal lands and attempted to specify management of those lands. Catron County
(NM) was a vanguard in asserting local control over federal property.51 Its ordinance
was repealed a year later, however. Local laws that impose direct management
requirements on the lands or require local approvals for land use changes almost
certainly are preempted under the Supremacy Clause (Article VI, Clause 2) of the
U.S. Constitution if they conflict with federal laws, regulations, or purposes.52
See 1980 Cal. Stats. 831 (1980); Colo. S.B. 170 (1981); S. Dakota S.B. 131 (1981).
Nevada State Board of Agriculture v. United States, 512 F. Supp. 166, 167 (D. Nev.
1981), aff’d on other grounds, 699 F.2d 486 (9th Cir 1983).
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.
Catron County Ordinance No. 004-91 (May 21, 1991), directing county management
activities for local federal lands. Repealed by Catron Co. Ordinance No. 003-92 (October
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. See also Opinion No. 94-01,
Attorney General of New Mexico.
Private entities have also challenged federal land ownership. In one case, the
plaintiffs asserted that they did not need a permit to graze livestock in a national
forest because the State of Nevada owned the lands.53 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.
Administrative Efforts. 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 and the rising federal deficit. Eventually, President
Reagan issued an Executive Order establishing the Property Review Board to review
federal real property for potential disposal.54 It was not clear how this initiative
related to existing laws such as FLPMA that provide statutory criteria for reviewing
lands for disposal and contain an express policy of retention. The “Asset
Management” program eventually stalled, however, because the Administration
sought clear congressional authorization for land disposal before it would identify
which lands might be disposed of, and Congress refused to consider legislation to
authorize such disposal until the Administration had identified which lands might be
Congressional Efforts. The history of the foregoing state, local, and
administrative efforts made it clear that reducing federal land ownership would
require an act of Congress. Bills were introduced in the 95th, 96th, and 97th
Congresses (1977-1982) 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 or considered on the floor.
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
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 ranchers.
Executive Order 12348 of February 25, 1982, “Federal Real Property,” 47 Fed. Reg. 8547
(March 1, 1982).
U.S. General Accounting Office (now Government Accountability Office), Forest
Service’s Program To Identify Unneeded Land For Potential Sale Is Stalled, GAO/RCED85-16 (Washington, DC: November 6, 1984).
refuges or National Park System units in one state).56 Hearings were held on some
of the bills, but none was reported by a committee or considered on the floor.
General legislation to dispose of federal land saw less congressional attention
in the 105th Congress. One bill — S. 1254, the Federal Lands Management
Adjustment Act — would have authorized management of the Forest Service or
BLM lands in a state for renewable 10-year terms by the state or a qualified nonprofit organization, but with legislative authorization required for each management
transfer. No hearings were held on the bill.
No bills to promote broad divestiture of the federal lands have been introduced
since the 105th Congress. Numerous bills have been introduced in most Congresses
to transfer individual or groups of parcels, for instance to local governments for
public purposes. Several bills and amendments have been offered to prohibit or
restrict federal land acquisition in states with 50% or more federal land ownership.
The Federal Lands Improvement Act was introduced in the 106th, 107th, and 108th
Congresses to accelerate BLM sales of lands identified for disposal under § 203 of
FLPMA; no hearings were held on these bills. In the 109th Congress, two bills, the
Action Plan for Public Lands and Education Act of 2005 (H.R. 3463/S. 2569), would
have allowed western states to select from the “unappropriated federal lands” (as
defined in the bill) up to 5% of the federal land acreage in the state, which could then
be leased or sold to generate state funds for education; no hearings were held on the
Issues for Congress
Concerns persist among many western citizens and Members of Congress about
the extent of federal landholdings and the effect of those lands — and of federal
decision-making about the management of those lands — on their lives and
economies. Legislation addressing the issue continues to be offered, although in
recent years, the bills have not been for wholesale disposal. Rather, the bills tend to
be more limited — capping federal land acquisition or ownership; expanding
disposal authorities, typically in limited areas; or otherwise accelerating currentlyauthorized disposals.
The agencies have numerous authorities for acquiring and disposing of federal
lands. Nonetheless, numerous bills are introduced and considered in each Congress
on specific acquisitions, disposals, and exchanges, often because of the limitations
in or difficulties with the existing authorities. Other initiatives have been offered to
sell federal lands to pay for other programs; the Bush Administration has twice
proposed land sales to fund a county compensation program.57
As noted earlier, decisions about the extent of federal landholdings and about
acquiring and disposing of federal lands are policy choices for Congress. Such
See CRS Report 96-919 ENR, Federal Land Disposal: Legislative Initiatives in the 104th
Congress, by Ross W. Gorte (archived, available from the author).
See CRS Report RL33822, The Secure Rural Schools and Community Self-Determination
Act of 2000: Forest Service Payments to Counties, by Ross W. Gorte.
choices are combined with interests in reducing federal presence in the West and with
possible sales of federal assets (i.e, lands) to pay for programs (often including
federal land acquisition). Thus, Congress is likely to continue to consider legislation
that would alter federal land ownership.