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Controversy over federal land transfer potentially moot

Opinions clashed on a proposal to transfer federal land to state ownership, but legal experts say the Oregon bill lacks a solid legal foundation.
Mateusz Perkowski

Capital Press

Published on April 3, 2015 1:50PM

Last changed on April 3, 2015 2:14PM

SALEM — The prospect of transferring federal land to state ownership roused sharply differing opinions in the Oregon Capitol recently, but the controversy may be legally moot.

Concerns over federal mismanagement of forest and range lands in Oregon serve as the impetus for House Bill 3444, which would require the U.S. government to cede most of its public lands to the state.

Oregon lawmakers are also considering House Bill 3240, which would form a task force on the subject, as well as House Joint Memorial 13, which would urge the U.S. President and Congress to make such a transfer.

However, legal experts say that Oregon and other states likely face insurmountable challenges in trying to gain ownership of federal property.

Such proposals generally reflect dissatisfaction with federal agencies but don’t have solid legal footing, said Robert Keiter, a law professor and director of the University of Utah’s Wallace Stegner Center of Land, Resources and the Environment.

“My guess is it has much more political salience given antipathy toward the federal government rather than any serious legal credibility,” he said.

During a April 2 hearing on the legislation, Sen. Doug Whitsett, R-Klamath Falls, blasted the U.S. Forest Service and Bureau of Land Management for sequestering employees in cubicles while forests grow overstocked and weeds overtake the landscape.

“The bloated bureaucracies that control these lands seem incapable of change,” Whitsett testified before the House Committee on Rural Communities, Land Use and Water.

Supporters of the bills claimed that the U.S. government’s ownership of more than half of Oregon’s land mass effectively starves county governments of property tax revenues, leading to insufficient funds for law enforcement and other crucial services.

Federal agencies are also hindered by environmental laws that prevent logging and other practices that generate revenues and mitigate fire risks, proponents said.

“Rather than focusing on the symptoms, we should be concentrating on the root of the problem,” said Tootie Smith, a Clackamas County commissioner.

Environmental groups testified against the legislation, arguing that federal management is necessary to protect species and water quality.

Federal lands belong to the public and should be valued for wildlife habitat and recreational opportunities, not just “extractive purposes” such as logging, mining and grazing, said Rhett Lawrence, conservation director for the Oregon Chapter Sierra Club.

If federal land were transferred to state ownership, the property would still be subject to the Endangered Species Act, Clean Water Act and Clean Air Act, Lawrence said.

The National Environmental Policy Act would no longer apply to the lands, however, which would shut out the public from decisions on how its managed, he said.

NEPA requires federal agencies to study the environmental consequences of their actions and is frequently the basis for lawsuits seeking to block grazing and logging.

Representatives of Trout Unlimited and the Native Fish Society also spoke against the bills, arguing that the state would face a huge burden in maintaining the ecological work that’s currently done by federal scientists.

The committee hearing focused on the merits of the legislation, but the state’s authority to require the transfer of federal land likely poses a major obstacle for supporters.

Lawmakers in Utah successfully passed similar legislation in 2012, but the state’s own legislative attorneys came to the conclusion that it has a “high probability of being declared unconstitutional.”

Under legal precedent established by the U.S. Supreme Court, the federal government has broad authority to retain ownership of public lands, said Keiter of the University of Utah.

Land transfer proponents rely on language in state enabling laws that refer to the disposal of federal lands, but these provisions are taken out of context since the U.S. government retains discretion whether to actually sell property, he said.

Arguments for land transfers that cite the “equal footing doctrine” — under which new states are treated equal to the first 13 — have also failed in court, since the doctrine applies to political rights and not land ownership, Keiter said.

“It’s a very difficult argument for proponents of transfer to make,” he said.


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