State Management of Federal Lands: Frequently Asked Questions
Released: 2016-12-16T00:00:00

Introduction

This report provides responses to frequently asked questions about federal land ownership and state efforts to foster control of federal lands within state borders. It first addresses questions on the extent, cost, and history of federal land ownership. It next discusses questions on the constitutional basis for federal land ownership and whether the federal government has authority to delegate management of federal lands. It then responds to questions related to the legal authority of states to manage federal lands within their borders and reviews current and past actions by states to foster divestiture of federal lands. Finally, it addresses how Congress exercises its authority to determine the extent of federal land ownership through consideration of legislative proposals.

How Much Land Does the Federal Government Manage, and Where Is It?

The federal government owns roughly 640 million acres, about 28% of the 2.27 billion acres of land in the United States. Four agencies administer about 610 million acres (95%) of this land: the Bureau of Land Management (BLM), Fish and Wildlife Service (FWS), and National Park Service (NPS) in the Department of the Interior (DOI), and the Forest Service (FS) in the Department of Agriculture. BLM manages 248 million acres of public land under a multiple-use, sustained-yield mandate that supports a variety of uses and programs, including energy development, recreation, livestock grazing, wild horse and burro management, and conservation. FS manages 193 million acres also for multiple uses and sustained yields of various products and services, including timber harvesting, recreation, livestock grazing, watershed protection, and fish and wildlife habitat. FWS manages 89 million acres, primarily to conserve and protect animals and plants. NPS manages 80 million acres in diverse units to conserve lands and resources and make them available for public enjoyment. In addition, the Department of Defense administers 11 million acres consisting of military bases, training ranges, and more. Numerous other agencies administer the remaining federal acreage.

Federal land ownership is concentrated in the West. Specifically, the five agencies identified here manage 61% of the land in Alaska and 46% of the land in the 11 coterminous western states. By contrast, these agencies manage 4% of lands in the other states.

How Much Money Does the Federal Government Spend to Manage Federal Lands?

The total amount of money the federal government spends managing federal lands is not readily available. However, approximately 95% of federal lands are managed by four agencies: BLM, FWS, NPS, and FS. Their total FY2016 appropriations were $15.47 billion, comprising $1.98 billion for BLM, $2.92 billion for FWS, $3.50 billion for NPS, and $7.07 billion for FS. These figures reflect new budget authority and both mandatory and discretionary appropriations (including for wildland fire management). They also include appropriations to the agencies that are not used on agency lands, ranging from little in the case of BLM to roughly two-thirds for FWS. In addition, allocations of funding from outside the agencies supplement these appropriations. A major allocation, for example, is from the Federal Highway Administration for federal lands highway programs.

Each agency disburses its appropriations differently among states. Various factors influence the allocation of appropriations among states, including the acreage of federal land; land resources, conditions, availability, uses, and impacts; demographics; and fire activity.

How Did the Federal Government Come to Manage Land?

At its inception, the federal government did not own land in the original states of the Union. Federal land ownership began when the original 13 states ceded title to more than 40% of their "western" lands (237 million acres between the Appalachian Mountains and the Mississippi River) to the central government between 1781 and 1802. Additional states were formed from those lands.

West of the Mississippi River (except Texas), lands were primarily acquired by the U.S. federal government from foreign governments, as was Florida (which was acquired from Spain). Federal land acquisition from foreign countries began with the Louisiana Purchase (530 million acres) in 1803 and continued through treaties with Great Britain and Spain (76 million acres) in 1817 and 1819, respectively. Other substantial acquisitions (620 million acres), through purchases and treaties, occurred between 1846 and 1853. The last major North American land acquisition by the U.S. federal government was the purchase of Alaska (378 million acres) in 1867. When western states joined the United States, their statehood acts gave up rights to claim lands retained by the federal government within their boundaries as a condition of joining the United States.

What Is the Authority for the Federal Government to Manage Land, and What Are the Constitutional Limitations on That Authority?

The Property Clause of the U.S. Constitution, Article IV, Section 3, Clause 2, gives Congress authority over the lands, territories, or other property of the United States. It reads as follows: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." This provision provides Congress broad authority to manage the lands owned by the federal government, including authority to dispose of those lands. The Supreme Court has held that the Property Clause, "in broad terms, gives Congress the power to determine what are 'needful' rules 'respecting' the public lands" and has "repeatedly observed that '[the] power over the public land thus entrusted to Congress is without limitations.'" When Congress exercises its authority over federal land, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause of the U.S. Constitution, Article VI, Clause 2.

Congress has given individual federal agencies specific authorities for federal land management through a number of statutes. These authorities include the Federal Land Policy and Management Act (FLPMA), the Sustained-Yield Act of 1960, the National Park System Organic Act, the National Wildlife Refuge System Administration Act, the Mineral Lands Leasing Act of 1920, and the Wilderness Act. Although the scope of authority differs by agency and by topic, these statutes generally have exercised authority short of the "furthest reaches of the power granted by the Property Clause," leaving certain aspects of management to the states. For example, Congress has to a large extent left management of wildlife on most federal lands to the states as a traditional area of state concern, although certain wildlife-related statutes have been enacted (for example, the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA)). Like laws, federal agency regulations for federal land issued under these or other statutory authorities are the "supreme Law of the Land" under the Supremacy Clause and therefore override any conflicting state laws.

Do Federal Agencies Have Authority to Delegate Management of Federal Land?

Federal agencies cannot delegate management of federal land to states or other outside entities unless there is express statutory authority to do so. Determining whether an agency has authority to delegate its management of federal land to a state requires examination of the applicable statutes for the particular agency and the particular management topic. For the most part, statutory provisions prescribe the federal-state relationship in ways that retain the federal agencies' primary responsibility and do not authorize delegation. As an illustration, the Mineral Lands Leasing Act requires DOI to "take into consideration and to the extent practical comply with State standards for right-of-way construction, operation, and maintenance" for pipelines through federal lands. However, DOI is not required to comply with state standards if it finds it impractical to do so, and it is not authorized to delegate pipeline oversight to states.

In some cases, however, statutes give federal agencies authority to delegate or assign responsibility for aspects of federal land management. For instance, statutory provisions authorize DOI to delegate aspects of oil and gas royalty management on federal lands to states. Specifically, the Federal Oil and Gas Royalty Management Act (FOGRMA) allows DOI to delegate royalty collection and enumerated related activities to a state. Other aspects of oil and gas development besides royalty management, such as environmental oversight, are not included in the scope of FOGRMA's authorization of delegation.

What constitutes a "delegation" can also be a fact-specific inquiry, requiring examination of how much authority the federal agency has given away and how much it has retained. Courts have found that an agency delegates its authority when it shifts to another party "almost the entire determination of whether a specific statutory requirement ... has been satisfied" or when the agency abdicates its "final reviewing authority."

Under various statutes, federal agencies are required to cooperate, consult, or coordinate with states (and other entities/individuals) in ways that stop short of full delegation. Moreover, a federal rule or action allowing state input into federal land management could be permissible (even without a statutory requirement) if the rule or action were found not to constitute a delegation of the agency's authority.

Do States Have Legal Authority to Manage Federal Lands Within Their Borders?

Although Congress has ultimate authority over federal lands under the Property Clause, states have legal authority to manage federal lands within their borders to the extent that Congress has chosen to give them such authority. The existence and extent of any such authority is determined by looking to the statutes applicable to the federal agency and management topic in question.

For example, a number of land-management statutes recognize states' traditional authority to allocate water rights and to manage fish and resident wildlife. The National Wildlife Refuge System Administration Act, for instance, states

(m) State authority. Nothing in this Act shall be construed as affecting the authority, jurisdiction, or responsibility of the several States to manage, control, or regulate fish and resident wildlife under State law or regulations in any area within the System. Regulations permitting hunting or fishing of fish and resident wildlife within the System shall be, to the extent practicable, consistent with State fish and wildlife laws, regulations, and management plans.

States' ability to license and otherwise manage hunting and fishing therefore generally extends to federal lands within their borders, barring specific preemptions. In contrast, states do not have legal authority to regulate certain aspects of grazing, wild horse management, or oil and gas development on federal lands, where federal statutes entrust that management to federal agencies.

Even where Congress has left certain aspects of federal land management to the states, unless Congress has enacted an exemption, otherwise-applicable federal laws or regulations override any contrary state laws under the Supremacy Clause of the U.S. Constitution. Thus, in the above example, state hunting and fishing laws and regulations do not apply to the extent that they conflict with applicable federal laws, including wildlife-related laws such as ESA or MBTA, as well as federal restrictions on uses of certain areas of public lands.

How Can States Obtain Authority to Manage Federal Lands Within Their Borders?

States can obtain authority to own and manage federal lands within their borders only by federal, not state, law. As discussed above, Congress determines the scope of states' authority to manage federal lands within their borders, pursuant to Congress's plenary authority over federal lands under the Property Clause of the U.S. Constitution. States are precluded from appropriating authority over federal lands beyond the scope of congressional authorization under the Supremacy Clause.

States could obtain authority to manage what are now federal lands if Congress transferred ownership of those lands to states. In the past, the federal government has at times conveyed parcels of land to states (and other governmental units) under general authorities provided by Congress, such as FLPMA, as well as statutes enacted for specific areas. In addition, on lands to which the federal government retains title, Congress does not have to exercise its authority to the "furthest reaches of the power granted by the Property Clause" and could potentially legislate to direct that certain resources, activities, or other aspects of federal lands be managed by states. Congress also could authorize, and in some instances has authorized, federal agencies to delegate or assign management of certain topics to states.

What Actions Have Been Taken by States in Support of State Management of Federal Lands?

In the past several years, roughly 20 states have taken actions to obtain or foster more state and local control over lands and resources. Supporters of such efforts have expressed concerns about the efficacy and efficiency of federal land management, accessibility of federal lands for certain types of recreation, and limitations on development of federal lands, among other issues. These states have considered a variety of measures, including the following:

to provide for or express support for transfer to states of federal lands or of certain categories of federal lands (e.g., agricultural lands); to establish interstate compacts to secure the transfer of federal land; to create task forces or commissions to examine federal land transfer issues; to govern state management of transferred lands; to assert management authority, or concurrent jurisdiction, over federal lands; to allow state management of federal lands under long-term lease arrangements; to authorize states to carry out certain activities on federal lands (e.g., forest, rangeland, and watershed restoration); and to allow local governments to declare and demand abatement of specified poor resource conditions on federal lands.

Some of these measures have been adopted by state legislatures. For example, in 2012, Utah enacted the Transfer of Public Lands Act. This law sought to require the federal government to transfer title to certain types of federal lands within Utah's borders to the state of Utah by the end of 2014. If Utah thereafter transferred title to the lands, the law would require Utah to pay 95% of its net proceeds to the United States. The state statute's deadline passed without transfer of federal land to the state, because states cannot obtain ownership of federal lands by state law.

Efforts in western states to reduce federal land ownership typically have had opponents as well as supporters. In addition to constitutional and statutory concerns, some supporters of continued or expanded federal land ownership have asserted that state and local resource constraints, other economic considerations, or environmental or recreational priorities weigh against state challenges to federal land ownership. In recent years, some states have considered measures to express support for federal lands or to limit the sale of federal lands in the state.

Efforts by a state to claim control of federal lands within its borders are likely to run afoul of the Constitution. As described above, under the Property Clause, Congress has plenary authority to regulate and manage federal lands, and under the Supremacy Clause, federal statutes and regulations override conflicting state laws. In general, only an act of Congress may expand states' authority over federal lands beyond the current scope of state authority under various federal statutory frameworks.

Have There Been Past Efforts to Transfer Ownership and Management of Federal Lands to States?

There have been efforts in recent decades to compel or foster divestiture of federal lands. These efforts have often focused on BLM and FS lands. One of the most concerted efforts occurred in the late 1970s and early 1980s and became known as the Sagebrush Rebellion. The Sagebrush Rebellion took the form of state and local legislation, court challenges, federal administrative changes, and proposals for federal legislation. As with current, similar efforts, a primary goal was more state and local control over lands and resources. Examples of actions included enactment of laws in several states asserting state authority over public lands.

These efforts did not accomplish broad divestiture for a number of reasons. A fundamental obstacle was that, as a condition of statehood, western states generally had agreed to disclaim forever "all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States." This language generally was incorporated in federal enabling acts creating western states. It also was incorporated into western state constitutions; therefore, subsequent state laws asserting title to federal lands appear to contravene the constitutions of western states. States do not appear to have attempted to enforce these laws.

What Has Been Congress's Role in Determining the Size of the Federal Estate?

The extent of federal land ownership is a policy choice for Congress. Recent Congresses have considered, and in some cases enacted, bills related to acquisition and disposal of land. Numerous proposals sought to authorize and govern federal acquisition of specific land parcels or groups of parcels. Some proposed protective designations or established new federal land units, such as national monuments, national conservation areas, and national parks. Other proposals sought to enhance acquisitions through increased funding and mandatory rather than discretionary appropriations for the Land and Water Conservation Fund. Still other bills promoted acquisitions for specific purposes, such as to secure access for hunting, fishing, and other recreation.

By contrast, numerous bills proposed to transfer particular federal parcels or groups of parcels to individuals or other governmental entities—for instance, local governments—for public purposes. Other disposal bills have been broader. Some proposals sought to reauthorize expired disposal authorities or establish new ones, such as to require BLM and FS to offer for competitive sale a certain percentage of their lands annually for each of several years. Other bills would have accelerated currently authorized land sales, such as BLM lands identified as candidates for disposal under Section 203 of FLPMA. Other measures would have allowed western states to select from the unappropriated federal lands a percentage of the federal land acreage in the state, which could then be leased or sold to generate state funds for education. Still other proposals sought to limit federal land ownership or acquisition, for example by prohibiting or restricting acquisition in states with a certain percentage of federal land ownership or by linking acquisition to comparable disposal.