Are U.S. Public Lands Unconstitutional?

85 Pages Posted: 22 Feb 2018 Last revised: 16 Mar 2018

See all articles by John D. Leshy

John D. Leshy

University of California Hastings College of the Law

Date Written: February 13, 2018

Abstract

Arguments are sometimes made most recently in a paper commissioned by the State of Utah, and by a lawyer for a defendant facing charges for the armed takeover of a National Wildlife Refuge in Oregon in 2016 that U.S. public lands are unconstitutional. This article disputes that position. It digs deeply into the history of the public lands, going back to the very founding of the nation. It seeks to show that the arguments for unconstitutionality reflect an incomplete, defective understanding of U.S. legal and political history; an extremely selective, skewed reading of numerous Supreme Court decisions and federal statutes; a misleading assertion that states have very limited governing authority over activities taking place on U.S. public lands; and even a misuse of the dictionary. At bottom, the arguments rest on the premise that the U.S. Supreme Court should use the U.S. Constitution to determine how much if any land the U.S. may own in any state. For the Court to assume that responsibility would be a breathtaking departure from more than 225 years of practice during which Congress has made that determination through the political process, and from a century and a half of Supreme Court precedent deferring to Congress. It would also be contrary to the Court’s often expressed reluctance to revisit settled public land law, upon which so many property transactions depend.

Suggested Citation

Leshy, John D., Are U.S. Public Lands Unconstitutional? (February 13, 2018). UC Hastings Research Paper No. 266, Available at SSRN: https://ssrn.com/abstract=3123176 or http://dx.doi.org/10.2139/ssrn.3123176

John D. Leshy (Contact Author)

University of California Hastings College of the Law ( email )

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