The ownership of real property is something we've discussed from time to time here. If a private citizen goes to own a piece of land, he or she can normally only obtain ownership in "fee simple." This is a form of feudal title, meaning that what we call an owner is really a feudal lord holding land from the sovereign. This is why eminent domain works: the land that the state is taking from you always really belonged to the sovereign state anyway. (Or so the legal fiction goes; this particular concept dates to early Medieval Europe, with the particular instrument of "fee simple" dating to Edward I).

What is harder to explain than eminent domain is this massive land-grab by the Feds. What makes it hard to explain is that the states opposed having their land seized by the central government, and it is not at all clear to me that the states aren't the proper sovereign for this purpose.
Obama unilaterally seized more than 1.3 million acres from Utah to establish the Bears Ears Monument, preserving it at the behest of conservationist groups and Native American tribes who claimed the land was sacred. Utah’s state legislature, however, opposed the unilateral land grab across party lines, with many speculating that Obama’s move is the latest in an attempt to limit efforts from incoming President Donald Trump to expand domestic energy production.

Obama also claimed 300,000 acres in Clark County, Nevada, as the Gold Butte National Monument, effectively closing the area off to future development for uranium mining, oil drilling or natural gas production.

While it's certainly nothing new, Obama's habit of unilaterally confiscating land has ramped up heading into the final stretch of his presidency. In the eight years he’s been in office, President Obama has seized more than 553 million acres of land and water (roughly 865,000 square miles) and placed it under federal ownership and control – enough square mileage to cover the entire state of Texas more than three times over.
This act defied a resolution by the state legislature in Utah opposing any new Federal land-grabs in their state. Utah's legislature doubtless feels a particular urgency about this, as 80% of the state has already been seized by the Federal government.

Among the constitutional re-thinking associated with the recent election has been a call to abolish the states, and run everything from the central government. This is (of course) exactly the opposite of what I think is the wise course. Nevertheless, I wonder if this isn't a functional means of doing it without the bother of a Constitutional amendment.

Self-government by the citizens of Utah now applies to only 20% of the land that is notionally within their borders. Why not 1%? Just as it has become common to set up "free speech zones" near political events (or on college campuses), why not restrict self-government to a couple of small towns or some other designated area? The few who care about living free could move, and the rest could continue to have their lives ordered by a friendly, distant Big Brother.

Perhaps we could call those last remaining free areas "Reservations." That would create a nice symmetry.


MikeD said...

First off, the whole "abolish the states" and "get rid of the electoral college" is nothing more than a liberal pipe dream. Republicans control almost enough State Houses, Governors, and seats in Congress to pass just about any Amendment they wish. I can't imagine anyone who both knows what it would take to "abolish the states" or "get rid of the electoral college" and who can count honestly believes it can be done.

Second, I could be wrong here, but assuming the President has the power to unilaterally decide land is now a national park, I would also assume the President would have the power to repeal that decision. In other words, I cannot imagine for a moment that President Trump could not declare "Gold Butte National Park" to no longer be a national park. Oh sure, the Democrats would howl about "giving away park lands", but so what? What one POTUS takes away the other can give back. These last minute land grabs are by no means holy writ which must last in perpetuity, why honor them as such?

Third, I have no problem with the idea of setting up such areas of self governance. With one caveat. Anyone who would move to these areas must both indemnify the rest of us from any negative consequences they may incur while living there (i.e. we don't come bail you out, or rescue you from natural disasters, or actions taken by your "local council" or whatever) and not be eligible for any government services for a period of 10 years after leaving to go live there. I don't want someone to decide that they want to experiment with their commune experience and then go flat broke and expect us to welcome them back into the fold as prodigal children to fix all their mistakes. That's the Lord's job, not the taxpayers'. And I say this as a libertarian.

Grim said...

'Such areas of self-governance' already exist -- we call them the states. Utah is just a state government, but it's been reduced by 80% in its effective territorial range. So why not reduce it to 1% of its old range, and then just let the central government rule over 99% of what used to be a state?

That's what I'm after here. What gives the Federal government the power to seize land against the will of the state government? If they can take 80% of one state, why not 99% of every state?

Anonymous said...

Ah, question. I was of the understanding that in the case of Utah, Nevada, New Mexico (basically the Inter-mountain West), when statehood passed, the federal government had the land and kept large swaths of it for homesteading, mining claims, timber claims, as well as military and Indian reservations. After the changes and eventual termination of the Homestead Act and its associated additions, that land reverted to the Bureau of Land Management, Forest Service, Bureau of Indian Affairs, and Department of War (as it was then). So the 80% of Utah that is federal dates to the creation of the state, rather than being ongoing federal claims.

Am I mis-remembering this? I know additional lands have been annexed by the Army Corps of Engineers and the other dams-n-power agency, and BLM and forest-service land (open to lease and drilling) have been re-designated as parks, refuges, and so on, but has there been new takings of state and private land? I realize it doesn't matter one whit to the folks who lost their grazing leases and who had timber or mineral interests, but the articles I've read say it is more reclassification than true taking (leases aside).

Thanks and sorry for the wall-of-text.


Grim said...


There are roughly three cases.

Case 1: Original 13 States. These states were sovereign entities that formed the United States as an act of their common will. The Federal Government is posterior to them, and has no claim I can see on any of their land against their will.

Case 2: Early expansion. These states started as land that the Federal government itself claimed as territories, but that it later yielded to the states or to individuals (as through homesteading).

Case 3: The West, where there was less homesteading because of arid or mountainous conditions.

In creating a state in accordance with the Constitution, as happened in cases 2 and 3, it seems to me that the Federal government is recognizing a sovereign entity exactly similar in stature to the original 13 states. It ought to have the same right to control the land under its jurisdiction. Instead of the Feds retaining control of the land no one wanted, it should have passed to the states, and the states should be the "real owner" who issues feudal grants 'in fee simple.' But what was done instead was that the Federal government claimed the power to retain ownership of that land.

In any case, that's about the disposition of land held before statehood. It doesn't explain why the Feds can lawfully land-grab millions of additional acres, especially when that is done in defiance of the state government.

jaed said...

It's worth noting that this is only certain states. The Feds are not grabbing large percentages of Connecticut, after all.

Partly this is for historical reasons, of course, but still. Try to get someone living in Massachusetts to imagine what it would be like if the Feds owned two-thirds of the land in the state and was everyone's landlord.

Anonymous said...

Thank you. We're looking at the foundation of the case from different perspectives, which led to my confusion. You are going back much farther in US federal land law than I am.