The heart of the challenge farmers and ranchers in western states have when it comes to dealing with public lands has its roots back in the revolutionary war, when states were fighting for self-governance, according to George Wentz Jr., a partner in the Davillier Law Group, who presented at the American Farm Bureau (AFBF)’s 100th Annual Convention in New Orleans.
In providing the historical context for western public lands, Wentz admitted he didn’t fully understand the idea of public lands or the impact they had on states until he moved to Idaho from the east a few years ago. Wentz has subsequently worked with western states and organizations – including the State of Utah and Attorney General Sean Reyes on public lands issues.
“I didn’t believe it when I was told that the lands I was looking at were owned by the federal government,” Wentz said. “This was new to me, and I’m sure new to many that live in the east. But we need to look at this not just as a property issue, but as a civil rights issue. It’s a fundamental equality issue.”
Wentz explained that he felt a lot of people – especially in the east – had blinders on regarding public lands issues, because they view it simply in the context of property ownership. Instead, he argued how the ownership of property and control of that property impacts resident’s civil rights.
Wentz presented the historical origins of what he feels is at the heart of the public lands dispute. As many states were fighting for self-governance against England during the revolutionary period, they looked to unite in this effort. States such as Maryland, however, felt an uneven balance with other states that held claims to “western lands”, and weren’t going to join the effort until these disputes were resolved and all states entered the union on even terms.
According to the Congressional Resolution of October 10, 1780, “unappropriated lands that may be ceded or relinquished to the United States”, were to be disposed of for the common benefit of the nation. Those lands were to be held in common by the federal government temporarily until they could be “formed into distinct republican States, and have the same rights of sovereignty, freedom and independence as the other States.” This processed continued until western expansion reached Colorado.
“People [in these states] felt equal and wanted to be treated equal. We didn’t want to be told what to do by those who didn’t represent us, so we fought for self-governance,” Wentz said. “Have the western states received the benefit of the revolutionary war the other 38 eastern states have?”
The processed of disposing of public lands stopped, Wentz believes, for two main reasons – the passage of the 16th Amendment, which created a federal income tax, and the passage of the Federal Land Management Policy Act (FLPMA), which has established how federal lands are managed.
Prior to the ratification of the 16th amendment in 1913, Wentz said, the federal government survived financially on tariffs and land sales. With a new source of revenue, the government stopped the process of selling the land.
FLPMA was passed in 1976 and provided rules for the managing of public lands. The mechanism that allowed states to be on equal footing was abandoned, essentially allowing the federal government to forever maintain ownership of federal lands.
“It would be like a trustee waking up one day and seeing there was a lot of money in the trust, and then deciding that instead that it would be the owner, not the trustee. This provision is unconstitutional I believe,” Wentz said. “Are [western] states weaker than other states because they can’t control the lands with its borders? I think they are.”
With states in the west on uneven footing, Wentz argued that western states are put at a disadvantage politically.
“[Public lands states are] are forever denied opportunity New York or Texas has. It’s a way of gerrymandering western states to keep them from having political power,” Wentz said. “How do I self-govern without the ability to pay for things? What about making a highway or expanding broadband? How to make public improvements? How do I compete with Texas or Florida? Population matters. States like Nevada can never possibly have that. I had no idea that I was dropping civil rights when I moved to Idaho, and it offends me.”
Elaborating more on the potential impact that public lands have on limiting power of states, Wentz hypothesized about the case of Bush v. Gore and which settled the recount dispute in Florida’s 2000 presidential election. If the state was treated like a western state, and didn’t have the population it currently had (and subsequent electoral votes), it would not have the political power it did or played such an important rule in the election.
Wentz further quoted U.S. Supreme Court Chief Justice John Roberts in the case of NFIB v. Sebelius in 2012, when he said that the independent power of the States serves as a check on the power of the federal government, and that by not having the control over its lands, western states are unable to check the federal government.
“By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power,” Roberts said in his opinion.
Wentz feels as these inequalities are further understood, it will be up to Congress to figure out a solution in conjunction with the states. It is hoped that a more equitable solution will aid farmers, ranchers and other users of public land.