Land And Water U.S.A.

Monday, January 2, 2017


Western Lands Issues 101

By Dr. Angus McIntosh                                                          January 2, 2017
Executive Director RAO 

Contact: 970 213-1005

Western Lands Issues 101

Art 1 Sec 8 cls 17 US Const. (the "Enclave Clause") allows Congress "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; " Read carefully this section is about "exclusive Legislation" and "Authority". Or, what the Courts have called Police Power Jurisdiction. It also allows the US to exercise authority over places purchased with the consent of the State legislature. Art 4 Sec 3 cls 2 (the "Property Clause") says "Congress shall have the power to dispose of and make all needful rules and regulations respecting the Territory and other property belonging to the United States". Thus the US can own land and interests in land within the boundaries of a State yet have NO civil or criminal jurisdiction whatsoever (unless granted by the state legislature for specific military or federal purposes). Also, under the "Property Clause” the primary duty of Congress was to "dispose of" the public lands of the Territory. No later State was allowed to enter the union until it gave up its claims to the "unoccupied" public lands. This allowed Congress to continue disposing of the public land without interference from the State. Congress followed an unwavering policy of disposing of the land to the actual persons in possession and occupancy of the land. This was done first on Indian Reservations under the General Allotment Act of 1887, then under the Forest Reserve Act 1891/1897 and the StockRaising Homestead Act/Taylor Grazing Acts 1916/1934. Also, acquired land within "resettlement projects" (national grasslands) was also disposed of under the Bankhead Jones And Farmers Home Administration Acts of 1937/1946. These were all split-estate disposal laws that disposed of a surface "fee title" in the allotment to the rancher while retaining the minerals and commercial timber for separate disposal. Thus when a National Monument is proclaimed but contains language protecting "valid existing rights" all "Grazing Allotments" are legally unaffected. See Watt v Western Nuclear 1983, Kinney Coastal Oil v Kieffer 1928, US v New Mexico 1978.

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