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    Urban Lawyer

    The American Legacy of Public Land Rebellion

    by John W. Ragsdale, Jr.

    William P. Borland, Professor of Law, University of Missouri-Kansas City School of Law; B.A. Middlebury College, 1966; J.D. University of Colorado, 1969; L.L.M. University of Missouri-Kansas City, 1972; S.J.D. Northwestern University, 1985. The author wishes to thank Akemi T. Malone, B.S.B.A. The University of Tulsa, 2007; M.A. Webster University, 2008; J.D. Southern University, 2012; L.L.M. The John Marshall Law School in Chicago, IL, 2015; for her extensive help in the preparation of this article.

    THE MOST RECENT MANIFESTATION OF THE SAGEBRUSH REBELLION1 is a mind-bending, consciousness altering, looking glass version of logic and reality. The sight of Cliven Bundy with his big hat, massive silver belt buckle, and his equally sizeable paunch, his unemployable spawn, the late, doggedly litigious Wayne Hage and his dutiful descendants, the swat teams of heavily armed, confrontation-seeking acolytes, equipped with flak jackets, AK-47s, second amendment signage, and “patriot” bling is, to be charitable, cartoonish.2 This clown car has emerged, clad in the sackcloth of “injured innocence”3 and professing to be the beleaguered natives of the Great Basin’s high desert.4 They announce rebellion against the evil federal Sheriff of Nottingham. In truth, only the Western Shoshone could legitimately make this claim, and, indeed, the Dann sisters are true American heroes.5 These characters at Bunkerville and Malheur are most decidedly not the like of the Dann Sisters.

    This crew of modern-day Yosemite Sams are, however, aided and abated by the insatiable ratings hunger of the 24 hour news cycle, by the fire-breathing, right wing radio hosts and by the preternaturally, perpetually irritated Tea Party; and beyond, more sinisterly, is the aid of the dark money of the corporate imperialists and the power of their legislative henchmen.6 The real rebellion, which exists behind the stalking horses of the “useful idiots,”7 is being fomented by the likes of the Koch Brothers, Utah Representative Ken Ivory, the American Land Council, the American Legislative Exchange Council, and most of the 2016 Republican presidential candidates, including Ted Cruz and Marco Rubio, all of whom are dedicated to the divestment of the federal public lands.8 This makes the rebellion worth a closer look.

    I.  The Roots of Rebellion

    The modern media barrage can present the modern uprisings as unique or clearly associated with modern right-wing angst over federal regulatory power and executive tyranny.9 The origins, however, easily seen in the progressive movement of the late 19th century,10 are present at the founding of the nation, are traceable back to the original invasion of the Americas by the European explorers, and can even be witnessed in the Crusades, occasioned by the papally-decreed Doctrine of Discovery.11 The early American occupiers felt that the Indians’ possession could be subordinated, in sovereignty and ownership, by reason of the Europeans’ superior race, culture, economy, firepower and Divine blessing.12 Priority among the exploring nations was accorded to the first in time, and ownership depended on the acquisition of Indian possession, through force or contract, under the authority of the discovering sovereign or its successor.13 The patriotic resistance and rebellion by the colonists was premised largely on the Crowns’ Proclamation of 1763, which frustrated colonial land speculation in the Ohio Valley.14 Thus, the ensuing war and founding of the country was more about the freedom to profit from Indian land than it was the freedom to speak and worship freely.15

    For the next century the new nation parlayed the naked legal title and sovereignty of the discoverer and conqueror, and the extinguishment of the Indians possessory interest,16 into a saleable, disposable federal public domain that extended through the heart of the continent, all the way to the Pacific Ocean.17 The central government handled the ownership of nearly two billion acres of land with the lightest of reins, and began disposition almost simultaneously with acquisition.18 The United States sought to spread its landed democracy west, partly to secure its sovereignty on an international scale; and also to finance its internal operations, subsidize business and internal improvements, and facilitate a general economic viability and vitality.19 Indeed, the ideas of Manifest Destiny and American exceptionalism belied embracement of a secular religion of growth,20 linked to both God’s purported command to subdue the earth,21 and the free markets’ imperatives to commodify the land and maximize the profits.22 American individuals and businesses moving west may well have been moving into a Lockean state of nature, but as a statement of fact they were moving on the wings of subsidy — land, water, and resources owned by the central government.23

    The modern version of the Sagebrush Rebellion began to emerge in the late 19th century. Settlers, business, and new states had received hundreds of millions of free or underpriced lands under the Railroad Grants, the State Enabling Acts, the Mining Act of 1872, the Homestead Acts, the Preemption Act, the Desert Land Act, and the general deference to state and territory acceptance of the doctrine of the prior appropriation of water.24

    Settlers and ranches, beyond this, had free access to the unreserved public domain.25 Indeed, the only 19th Century restraint on the use —  and tragic overuse26 — of the federal commons was the Unlawful Enclosures Act, which prohibited the fencing of the commons without right of possession.27 Then, in 1890, Frederick Jackson Turner wrote: “And now, four centuries [after] the discovery of America, at the end of a hundred years of life under the Constitution, the frontier has gone, and with its going has closed the first period of American history.”28

    Much of the new nations’ most readily available resources had been quickly and privately appropriated, and population, competition and consumption were accelerating.29 George Perkins Marsh, one of the first ecologists, wrote about the devastating impact of deforestation on civilizations,30 and others observed that industrialized timber culture had indeed denuded much of the central states’ original forests.31 The glimmerings of imbalance and the limits of natural carrying capacity began to penetrate the reductive logic of laissez faire and the unfettered free market.32 The set-aside of Yellowstone as the world’s first National Park in 1872,33 the General Revision Act of 1891, which allowed the President of the United States to unilaterally proclaim forest reserves from anywhere within the public domain,34 and the act’s enthusiastic utilization by Presidents Harrison, Cleveland, McKinley and especially Roosevelt added over 150 million acres to the permanent federal reserves by 1909.35 The Land Disposal Express had begun braking and this set in motion the conflict at the heart of the modern confrontation.

    Individuals and states, accustomed to unrestrained federal largesse, began to rebelliously question, if not yet bite, the visible hand that had long fed them. Could the United States withhold lands from the states on a permanent basis, or could the states demand a transfer of title? An early Supreme Court decision, Pollard v Hagan,36 held for the states, but the case dealt literally with the bed lands of water commercially navigable at the time of statehood.37 Pollard’s holding rested on a theory of state sovereign ownership, and political equal footing that stemmed from pre-revolutionary common law antecedents.38 Its dicta seemed to suggest a broader disposable land trust for future states,39 but subsequent cases sustained the ability of Congress, under the Property Clause, to hold upland segments of the acquired and undisposed public domain on an indefinite basis.40 In particular, the forest reserves were deemed a public trust, declared from within the supreme discretion of Congress as a proprietor and a sovereign.41 Thus, early rebels like Fred Light were forced to acknowledge the federal ability not only to set forest reserves aside, but also to license grazing therein, and charge fees, without the consent of either the states or the private individuals.42

    The federal government’s constitutional ability to stem the flow of land with some permanent reservations was so clear after the National Park and Forest cases that little was heard from the rebels in the courts until the rise of environmentalism in the 1960s and 1970s,43 and later the birth of the gateway recreational communities.44 However, some economic and political transitions occurred in the Depression Era that were to have significant bearing on the course of the rebellion.

    The economic bubble of the gilded 20s burst in 1929, and the stock market collapsed. Then the great drought and the high winds off the plains followed.45 The Dust Bowl changed the physical, economic, and political course of the nation’s midsection and the Great Basin.46 The unreserved public domain, and overgrazed, undermanaged commons, met their final tragedy as the gale force winds ripped off the unprotected topsoil and sent the grim message, along with the dust, all the way to Washington.47 The unreserved public domain was no longer desirable or even viable. People walked away from their homesteads or sold them to the federal government as a buyer of last resort.48 The government began restoration of the prairie lands it had sold or given away only several generations before, a project resulting in the National Grasslands and several National Forests in Nebraska.49 The government also began the management of the unreserved public domain with the Taylor Grazing Act, which provided for the establishment of the United States Grazing Service, the use of grazing districts, the issuance of permits, and the charging of fees.50 The act also essentially ended homesteading.51 The giveaway spigot was closing, but farmers and ranchers on the unreserved public domain might have seen the New Deal conservation efforts as free market-saving tough love.52 The rebellion simmered while the nearly-drowned cattle industry fought to regain breath.

    In 1970, however, things, instead of getting better for the ranchers, made a major turn for the worse. The Public Land Law Review Commissions’ seminal report called “One Third of the Nation’s Land” analyzed the public lands, their multiple uses, the process for selecting them, and the prospects for disposition.53 The Commission report came on the winds of environmentalism, the passage of the National Environmental Policy Act, and the desire to balance private usage with a continuing, perhaps expanding public trust.54

    Six years later, things got even harder as the power and balance, discussed as policy by the Commission, hardened into judicial and legislative broadswords and private grazing on public lands drifted perilously close to the chopping block. The preservation of wild horses and burros — often a pest to western ranchers — was assured by a federal act which gave the federal government protective jurisdiction of the creatures both on and off federal property.55 The Supreme Court held in Kleppe v New Mexico56 that the federal government’s Property Clause jurisdiction was supreme, though not necessarily exclusive, and that it was a plenary power over public lands essentially without limit,57 and that regulations reasonably related to federal land policies might have collateral impact on private lands.58

    Almost simultaneously, Congress passed the Federal Land Policy and Management Act (FLPMA),59 effectively, an organic act for the Bureau of Land Management (BLM).60 FLPMA made explicit what had been feared since the Taylor Grazing Act — the federal government was not, as a matter of general policy, going to dispose of anymore of the public domain.61 Congress deemed it to be the policy of the United States that public land would “be retained in Federal ownership, unless . . . it is determined that disposal of a particular parcel will serve the national interest.”62 FLPMA also affirmed the transitory nature of grazing leases or permits on the public land, which had been specifically identified in the Taylor Grazing Act as less than constitutionally protected property interests.63 FLPMA provides for revocation on an officers’ determination of fee non-payment or regulatory violation, and for abbreviated rights of process and appeal.64 The relation between the United States and the tenant stockmen had moved from one of facilitation and laissez faire to one of grudging tolerance and increasing bureaucratic control.

    Even further down the road to rebellion, the ranchers on the public lands faced increasing competition for the attention and favors of the federal landlord. The recreationists, environmentalists, and recreation community developers began asserting that economic times had changed and that the stockman and the extractive industries like timber and mining had been displaced by service, recreation, and high technology.65 In the words of Charles Wilkinson, the “Lords of Yesterday” no longer held dominant power or transcendent importance, and should defer to balance and sustainability.66 Some went farther to say that cattle ranching should be replaced on the public lands.67 Rebellion was now imminent.

    II.  The Legal and Constitutional Terrain

    The first live rounds in the modern range war were fired in the federal courts and involved rather tired attempts at recycling the dicta of Pollard v. Hagan,68 the Enclave Clause,69 the Equal Footing Doctrine, and the inherently indeterminate backstop of the Tenth Amendment.70 The rebels argued that the United States had no constitutional authority, other than the Enclave Clause, to hold the public lands indefinitely, and that the Equal Footing Doctrine and the Tenth Amendment compelled a transfer of land title and sovereignty to the respective states.71 The federal courts have held, before and since the revolution redux, that Pollard’s self-executing trust was limited to the bed lands of navigable water,72 that even the bed land trusts can be defeated by federal grant or reservation before statehood,73 that retained federal fast lands, especially those beyond the Mississippi, are not within even the trust dicta of Pollard,74 that the Equal Footing Doctrine applies only to political rights and sovereignty and not to physical or economic characteristics of states,75 and that the Tenth Amendment reservation is not affected by situations of concurrent jurisdiction.76 Finally, and significant in the most modern of the disputes, state enabling acts inevitably contained “Disclaimer Clauses” whereby new states pledged to disclaim all right to unappropriated federal public lands lying within, and that any disposal of such lands should remain within the discretion of the United States.77

    To escape the rather obvious problems with judicial precedent, and the inevitable dismissals because of issue preclusion and res judicata, the modern rebels have attempted some nuances. Some litigants have asserted the existence of, in essence, customary, pre-statutory usage that has created protectable private property on a smaller scale, such as individual aboriginal rights78 or customary access rights,79 with attendant grazing rights in order to reach water rights, vested under state law, but located on federal lands.80 These approaches have largely foundered in light of the Ninth Circuit’s recent decision in United State v. Estate of E. Wayne Hage,81 which decisively held that the Property Clause gives the United States plenary power to regulate the uses of federal land and either prohibit absolutely or fix the terms of use,82 that customary access was only an implied license subject to revocation,83 that the issuance of a permit did not create vested property rights84 and that any owner of water rights, “like all other persons-may graze cattle on federal only if he or she obtained a grazing permit . . . .”85

    Another, more expansive, judicial approach is to claim that an enabling act disclaimer may be tempered by the existence of a contract in the act obligating the federal government to dispose of the unreserved public domain to the states or its citizens.86 There area number of problems with the contract claim as a tool to force congressional divestment. For one thing, the language of contract in the Enabling Act is remarkably skimpy. Proponents seize on words following the act’s general disclaimer that only to the highly charitable can be seen as promissory:

    That the people inhabiting said proposed State do agree that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; 87

    Robert Keiter and John Ruple have succinctly pointed out the problems with the contractual argument.88 In one sense, the language of extinguishment seems to refer to Indian lands only;89 in another sense, prohibitions against land grants exist in other parts of the enabling act.90 Furthermore, any disposal should be to generate value for the American people as a whole, not just a discrete state like Utah and finally, the word “shall” is unlikely to be treated as a word of obligation, especially when it is used against the federal government as grantor and facilitator of statehood.91

    If, in the wildest of rebel pipe dreams, a court — even the Supreme Court — were to brand the United States Congress as a contract breaker, there are deep issues of enforceability and sovereign immunity that would almost certainly make the whole issue non-justiciable.92 The United States, as treaty signatory, has long asserted the power to abrogate promises to foreign nations and Indian tribes.93 Similarly, the United States could assert the sovereign act/ unmistakability defense, under which all contracts, including those of the sovereign, remain subject to future exercises of the sovereign’s jurisdiction, unless such power is surrendered in unmistakable terms.94 In addition, as trustee of the federal lands, Congress has, within the power of treaty, the ability to transmute assets without constitutional consequence if done in good faith.95 Even if breach or management is in bad faith and even if it does raise constitutional compensatory issues,96 these must be raised in the Court of Claims within the statutory time limits.97 Constitutional and contract claims and suits to quiet title to lands have deadlines that may well have expired in the 19th century or certainly no later than 12 years after the clear statement of non-disposal in the 1976 FLPMA.98

    The truth is that the states and individuals probably know that they do not have viable claims under the Constitution, the statutes, the case law, and contract doctrine, and they know that justiciability and sovereign immunity are impenetrable procedural barriers. They are probably aware that the most viable approach is something akin to the Utah Transfer of Public Lands Act99 only at a higher political level. To date, the individual and state level insurgents have been content making a spectacle, a public protest for the cameras and the media. The grand idea-understood and orchestrated by plutocrats like the Koch brothers, right wing enterprise organizations like the American Legislative Exchange Council, and ambitious politicians like Representative Ken Ivory of Utah and Senator Ted Cruz, and carried out by puppets100 like Cliven Bundy, the Oathkeepers, and the heavily armed militia members — is less to resurrect a true rebellion in the courts states, or streets, and more to instigate a federal political coup.101 A conservative Congress, a right wing president, an originalist Supreme Court, and a re-staffed Department of the Interior could simply rewrite the law, and overrule all the precedents. After all the Property Clause that gives plenary reservation power to one legislature can give subsequent dispositional power to another. The environmental safety net can be ripped apart or removed, and the public trust can be disseminated to wealthy industrialists, rich foreign buyers, and eager, enterprising states — certainly not to the middle and lower classes who lack the funding to outbid or out buy the forces of concentrated capital. This means that the coming battle for the public lands will have to be, as it was in the late 1800’s, ideological. Proponents of the federal public lands will have to present arguments for the desirability, as well as, the legality or constitutionality of the continued public domain. It is time to at least reflect on what these arguments can be.

    III.  Arguments for the Continuation of the Public Domain

    The easiest argument, perhaps, is that the public lands — the BLM lands and National Forest Lands not specifically reserved as wilderness, National Parks, and Monuments or Wildlife Refuges102 — are the fountainhead for the continuation of the specific statutory set-aside process.103 As further examinations take place and as public needs require, new statutory inclusions can be made.

    The National Parks have long been our cathedrals and monuments to present to the world, and the system as a whole is viewed as one of our nation’s best ideas and most valuable cultural contributions.104 Internally, to the citizens, the national preservation lands are symbolic of our history and heritage, and our fundamental encounters with the wilderness.105

    There is a continuing, growing need for an equality of recreational access and central community — public places available to all on affordable terms, and with the assurance that all individuals and all regions have a stake in the natural experience and the national soul.106 There are many millions of acres of public lands that, though not  yet included in the iconic systems, are still highly suitable for long-term preservation, restoration, and national stewardship.107 If such public lands are turned over to private and state economic imperatives, short term returns are likely to prevail over long term stability.108 The beneficiaries of a broad, future focus will be the species, habitats and diversity that do not fit as easily in the reductionist, market-based economy,109 and may not fit within the shrinking protective web of commerce clause jurisdiction.110

    It may be possible for states as transferees of the federal public trust to continue to be stewards of the public lands.111 States might even be charged with continuing, federal trust duties after transfer.112 Federal case law, however, suggests that state trust duties are decided under state law, with no necessary national perspective,113 and the state results have been inconsistent at best.114

    A continuation of the public lands trust in the west also has necessary implications for public lands in the east. Divestment in the west such as proposed by Utah’s Transfer of Public Lands Act,115 might well countenance or compel divestment in the east and Midwest.116 The national lands east of the Rockies - the national parks, national forests, wilderness areas and national grasslands - were, for the most part, not formed by reservation out of the public domain. They were, in most cases, purchased from willing, sometimes desperate, sellers and then held under the authority of the Property Clause.117 Still, there are the beginning rumblings of eastern rebels to turn over trust lands such as Missouri’s Ozark National Scenic Riverways to the control and, for the discrete benefit of, the state.118 It would seem better that national lands, bought by the people and their federal taxes, should be held in trust for all the people, and not turned over to state or local beneficiaries.119

    One might take solace that, if rebellious decentralization does take hold of the federal government, as a political, if not constitutional matter, and if Congress does dissipate the trust into private and local holdings beyond the reach of the other states, and the national citizenry, a new national consensus could still emerge. The constitutional power to tax and spend for the general welfare-long affirmed as a basis of set-aside,120 in addition to continuing reservations from the public domain,121 can, with the aid of the Property Clause, reestablish the public lands and the national trust.122

    The national will, and the collective need, for a land-based center of sovereignty and spirit cannot be denied, even by those in the service and thrall of the free market. The need for and the power of a physical center for the natural and human communities will prevail, even if it must be resurrected.

    IV.  Conclusion

    My parents moved west to Denver after World War II, when I was three, and I have always felt the distinctive, “brooding omnipresence”123 of the national lands. I grew up on these lands, and resist the inevitably of aging on them. Holding in my mind Norman Mac- lean’s timeless imagery of the arctic half-light of a canyon — and a life124 — I still climb the peaks, ski the slopes, and run the rivers — slower, perhaps, but with a much heightened sense of gratitude and obligation. The public lands have given definition to our cities, institutions, philosophies and our lives.

    My wife was born in Casper, Wyoming, surrounded by the high desert public lands, the basins and the ranges described by John McPhee.125 To the north of Casper are the Bighorn Mountains — the southern spur treeless, the hole-in-the-wall, BLM lands; and the north- ern national forest lands, surmounted by majestic Cloud Peak, rising over 10,000 vertical feet above the eastern front.126 To the east of Casper is the Thunder Basin National Grassland, a haunting seascape of aching solitude, rolling hills, and waving grass.127 To the south are Laramie Mountains, the Shirley Basin, and the spectacular reservoirs, built by the federal government on the North Platte River, as it courses out of the Seminoe Mountains, down through Casper and on to the southeast to join its Colorado mate.128 To the southwest of Casper are the wild sky islands, formed by the Green Range and the Ferris mountains.129

    And there is always the restless western wind, a brooding, rolling omnipresence in itself. One comes into Casper, on a downward run with this wind, from Shoshoni, and reaches a point where the town, backed by Casper Mountain, spreads out below along the Platte.130 Annie Proulx described this view, of Casper lights at night, in a chap- ter called “A Lonely Coast”131

    And if you’ve ever been to the lonely coast, you’ve seen how the shore rock drops off into the black water and how the light on the point is final. Beyond are the old rollers coming on for millions of years. It is like that here at night but instead of the rollers it’s wind.132

    The high desert is lonely — but it is a solitude infused with dreams and freedom, the solace of open spaces.133 The human forms — individual and collective — are shaped by the public land and the wind— unsettled, but then comforted and embraced.

    Joe Cardine, my wife’s father, came west after the war as an engineer, but he reemerged as a lawyer, a law professor, and a Wyoming Supreme Court judge.134 Transformed from the linear, to the quest for balance and justice, he also sought to secure a hold on the land. He bought a ranch in the foothills of the Laramie Range, flanked by BLM land and National Forest, and including some grazing lease lands within. Joe was much more a steward than an active rancher  and he maintained respectful relations with his federal neighbors. But the opportunity for an enduring cooperative conservation passed into indeterminacy with his death because the family could not afford to keep the ranch. This is the problem with plans to privatize the public lands and hopes for stewardship and public access. It may happen, but it probably won’t because private time lines are shorter. Only the enduring, publically focused sovereign can insure the long term focus and the stewardship necessary for a true patrimony.

    There are some clear examples of Wyoming’s tenuous public land future following divestment. The disposition of land to the railroads formed a checkerboard pattern of interlocking public and private holdings. Access to the interlocked public land or through the checkerboard swath to other federal holdings such as Seminoe Reservoir be- comes problematic — especially if the private lands which bar the way are held by unrepentant, non-reciprocating, selfish gain-seekers like members of the Elk Mountain Safari, Inc. This consortium of large, wealthy landowners, and their high rolling, sporting patrons have used fencing in the checkerboard to extract tolls from public travelers on the way to Seminoe,135 or to bar hikers from approaching Elk Mountain.136 The courts, elevating individual private property rights over public licenses of access, have supported the closure.137

    In short, the people need access to the public lands, and the ability to freely use them. The federal government should keep all the public land it has. These lands have shaped the character of the people and the form of their institutions; even lands at a distance from immediate users. Wyoming wilderness 2000 miles from New York provides a tangible, collective image and spirit, a vision that inspires, fulfills, comforts, and unites the people. We need more public land, if we can  get it, throughout the nation, and we should retain that which we have as if our lives, and the public life, depend on it — which they do.

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    1. See generally Forty Years of Sagebrush Rebellion, HIGH COUNTRY NEWS ( Jan. 4, 2016), http://www.hcn.org/articles/sagebrush-rebellion (providing a brief historical context).
    2. Tay Wiles, Interactive Timeline: Livestock Grazing in the West, HIGH COUNTRY NEWS (Mar. 1, 2016), http://www.hcn.org/articles/interactive-timeline-a-history-oflivestock-grazing-in-the-west.
    3. PATRICIA NELSON LIMERICK, THE LEGACY OF CONQUEST 35-54 (1988).
    4. Id.
    5. See John W. Ragsdale Jr., Individual Aboriginal Rights, 9 MICH. J. RACE & L. 323, 341-56 (2004).
    6. See Jonathan Thompson & Brooke Warren, The Hidden Connections of the Sagebrush Insurgency, HIGH COUNTRY NEWS (Feb. 2, 2016), http://www.hcn.org/issues/48.2/the-hidden-connections-of-the-sagebrush-insurgency; see also Lyndsey Gilpin, How an East Coast Think Tank is Fueling the Land Transfer Movement, HIGH COUNTRY NEWS (Feb. 26, 2016), http://www.hcn.org/articles/how-an-east-coast-think-tank-is-fueling-the-land-transfer-movement.
    7. Steve McCann, America’s Useful Idiots, AM. THINKER (May 1, 2012), http://www.americanthinker.com/articles/2012/05/americas_useful_idiots.html.
    8. Nicole Gentile & Matt Lee-Ashley, The Dog Whistle Politics of Seizing and Selling American Lands and Energy Resources in the West, CTR. FOR AM. PROGRESS FUND (Oct. 27, 2015), http://www.americanprogressaction.org/issues/gree/report/2015/10/27/124229/the-dog-whistle-politics-of-seizing-and-selling-american-land-and-energy-resources-in-the-west.
    9. See, e.g., Mike Adams, If Feds Slaughter Patriot Occupiers in Oregon, It Will Unleash an Armed Revolution Across America . . . Civil War may be Near, NATURAL NEWS ( Jan. 4, 2016), http://www.naturalnews.com/052508_Oregon_patriots_armed_revolution_Civil_War_in_America.html.
    10. Forty Years of Sagebrush Rebellion, supra note 1.
    11. ROBERT WILLIAMS, THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT-THE DISCOVERIES OF CONQUEST 325-28 (1990).
    12. Id. 233-80.
    13. Johnson v. M’Intosh, 21 U.S. 543 (1823); see also WILLIAMS, supra note 11, at 312-17.
    14. NELL JESSUP NEWTON ET AL., COHEN’S HANDBOOK OF FEDERAL INDIAN LAW §102 (2015).
    15. See WILLIAMS, supra note 11, at 227-30.
    16. See Johnson, 21 U.S. at 572-90.
    17. PAUL W. GATES, HISTORY OF PUBLIC LAND LAW DEVELOPMENT 75-76 (1968).
    18. KRISTINA ALEXANDER & ROSS W. GORTE, CONG. RESEARCH SERV., RL34267, FEDERAL LAND OWNERSHIP: CONSTITUTIONAL AUTHORITY AND THE HISTORY OF ACQUISITION, DISPOSAL, AND RETENTION 1-6 (2007).
    19. See RICHARD WHITE, “IT’S YOUR MISFORTUNE AND NONE OF MY OWN”—A HISTORY OF THE AMERICAN WEST 137-54 (1991).
    20. WILLIAM OPHULS, ECOLOGY AND THE POLITICS OF SCARCITY 184-91 (1977).
    21. Lynn White, Jr., The Historical Roots of Our Ecological Crisis, 155 Science 1203, 1207 (1967).
    22. JOSEPH PETULLA, AMERICAN ENVIRONMENTAL HISTORY 9-14 (1977).
    23. Clyde A. Milner, National Initiatives, in THE OXFORD HISTORY OF THE AMERICAN WEST 155 (Clyde A. Milner, Carol A. O’Conner & Martha A. Sandweiss, eds., 1994).
    24. GATES, supra note 17, at 145-434; GEORGE COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCE LAW 428-31 (7th ed. 2014).
    25. Buford v. Houtz, 133 U.S. 320, 323-24 (1890).
    26. Garrett Hardin, The Tragedy of the Commons, 162 Science 1243, 1248 (1968).
    27. 43 U.S.C. § 1061.
    28. Frederick Jackson Turner, The Significance of the Frontier in American History, in ANNUAL REPORT OF THE AMERICAN HISTORICAL ASSOCIATION 199, 227 (1893).
    29. ROY M. ROBBINS, OUR LANDED HERITAGE 301-03 (2nd ed. 1976).
    30. William E. Shands, The Lands Nobody Wanted: The Legacy of the Eastern National Forests, in ORIGINS OF THE NATIONAL FORESTS: A CENTENNIAL SYMPOSIUM 19, 26 (Harold K. Steen ed., 1992).
    31. See, e.g., PETULLA, supra note 22, at 220-25.
    32. See id.
    33. DWIGHT F. RETTIE, OUR NATIONAL PARK SYSTEM 1 (1995).
    34. T.H. WATKINS & CHARLES S. WATSON, JR., THE LANDS NO ONE KNOWS-AMERICA AND THE PUBLIC DOMAIN 99 (1975).
    35. See ALFRED RUNTE, THE NATIONAL FOREST IDEA 45-56 (1991).
    36. Pollard v. Hagan, 44 U.S. 212 (1845).
    37. 44 U.S. at 230.
    38. COGGINS, supra note 24, at 63-65.
    39. Id. at 73.
    40. See United States v. Gratiot, 39 U.S. 526 (1840) (mineral leasehold reversions); United States v. Gettysburg Elec. Ry. Co., 160 U.S. 668 (1896) (national military park); Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525 (1885) (federal military reservation).
    41. Light v. United States, 220 U.S. 523, 537 (1911); Utah Power and Light Co. v. United States, 243 U.S. 389, 392 (1917).
    42. 220 U.S. at 537-38.
    43. COGGINS, supra note 24, at 142.
    44. See John W. Ragsdale Jr., National Forest Land Exchanges and the Growth of Vail and Other Gateway Communities, 31 URB. LAW. 1 (1999).
    45. See DONALD WORSTER, DUST BOWL: THE SOUTHERN PLAINS IN THE 1930’S 11-25 (2004).
    46. Id.
    47. WATKINS & WATSON, supra note 34, at 112.
    48. ERNEST CALLENBACH, BRING BACK THE BUFFALO 101-02 (1996).
    49. Id. at 101-02, 97.
    50. WATKINS & WATSON, supra note 34, at 114-15.
    51. Id.; see also ROBBINS, supra note 29, at 421-23.
    52. WHITE, supra note 19, at 480-81.
    53. Lynton K. Caldwell, Policy Planning and Administration, in WHAT’S AHEAD FOR OUR PUBLIC LANDS: A SUMMARY REVIEW OF THE ACTIVITIES AND FINAL REPORT OF THE PUBLIC LAND LAW REVIEW COMMISSION 116, 116-28 (Hamilton K. Pyles, ed. 1970).
    54. Id. at 116, 121.
    55. Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340.
    56. Kleppe v. New Mexico, 426 U.S. 529 (1976).
    57. See id. at 535-41.
    58. See id. at 546-47.
    59. Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-1787.
    60. ERNEST C. BAYNARD III, PUBLIC LAND LAW AND PROCEDURE 37 (1986).
    61. 43 U.S.C. § 1701(a)(1); BAYNARD, supra note 60, at 81-82.
    62. § 1701(a)(1).
    63. See 43 U.S.C. § 315; BAYNARD, supra note 60, at 283.
    64. See BAYNARD, supra note 60, at 309-12; 43 U.S.C. § 1733(a); 43 C.F.R. § 4160.
    65. COGGINS, supra note 24, at 43-44.
    66. CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN 3-28, 293-306 (1992).
    67. See, e.g., DEBRA L. DONAHUE, THE WESTERN RANGE REVISITED (1999); GEORGE WUERTHENER & MOLLIE MATTESON, WELFARE RANCHING (2002).
    68. Pollard v. Hagan, 44 U.S. 212 (1845); see also sources cited supra notes 37-41.
    69. U.S. CONST. art. I, § 8, cl. 17; DONALD J. KOCHAN, THE FEDERALIST SOC’Y, A LEGAL OVERVIEW OF UTAH’S H.B. 148-THE TRANSFER OF PUBLIC LANDS ACT 25-26 (2013).
    70. United States v. Gardner, 107 F.3d 1314, 1320 (9th Cir. 1997) (U.S. Cons. Amendment reserves to the states power not delegated to the United States).
    71. Id. at 1318-20; see also Nevada v. Watkins, 914 F.2d. 1545, 1553-57 (9th Cir. 1990).
    72. Arizona v. California, 373 U.S. 546, 587 (1963).
    73. Utah Div. of State Lands v. United States, 482 U.S. 193, 200-19 (1987).
    74. Gardner, 107 F.3d at 1317-18.
    75. Id. at 1318-19 (citing Coyle v. Smith, 221 U.S. 559, 568 (1911)).
    76. Id. at 1320 (citing Kleppe v. New Mexico, 426 U.S. 529, 543 (1976)).
    77. Id. at 1319-20.
    78. United States v. Dann, 873 F.2d. 1189, 1199-1200 (9th Cir. 1989).
    79. See Buford v. Houtz, 133 U.S. 320, 327-29 (1890).
    80. United States v. Hage, No. 2:07-cv-01154-RCJ, 2013 WL 2295696, at *47-*49 (D. Nev. May 24, 2013).
    81. United States v. Hage, 810 F.3d 712 (9th Cir. 2016).
    82. Id. at 716.
    83. Id. at 717.
    84. Id.
    85. Id. at 718.
    86. See KOCHAN, supra note 69, at 12-19.
    87. UTAH CODE ANN., Enabling Act. §3; KOCHAN, supra note 69, at 12.
    88. ROBERT B. KEITER & JOHN C. RUPLE, STEGNER CTR., WHITE PAPER NO. 2014-2, A LEGAL ANALYSIS OF THE TRANSFER OF PUBLIC LANDS MOVEMENT (2014).
    89. Id. at 3.
    90. See id. at 4.
    91. Id. at 3-5; Alaska v. United States, 35 Fed. Cl. 685, 701-02 (1996).
    92. See JOHN W. HOWARD ET AL., LEGAL ANALYSIS PREPARED FOR THE UTAH COMMISSION FOR THE STEWARDSHIP OF PUBLIC LANDS 130-35 (2015), http://le.utah.gov/interim/2015/pdf/00005590.pdf.
    93. See, e.g., Lone Wolf v. Hitchcock, 187 U.S. 553, 565-66 (1903).
    94. See United States v Winstar Corp., 518 U.S. 839, 871-72 (1996).
    95. See United States v. Sioux Nation of Indians, 448 U.S. 371, 415-21 (1980).
    96. Id. at 423-24.
    97. Id.
    98. See HOWARD ET AL., supra note 92, at 136; see also Hillary Hoffman, Utah’s Public Lands Aren’t About to Change Hands, HIGH COUNTRY NEWS (Feb. 24, 2015), https://www.hcn.org/articles/utahs-public-lands-arent-about-to-change-hands/print_view.
    99. Hoffman, supra note 98.
    100. See Gentile & Lee-Ashley, supra note 8.
    101. See sources cited supra notes 6-12. The Utah Transfer of Public Land Act called for the transfer of most the federal land in Utah back to the state by the end of 2014. The date came and went without notable response from either the state or federal government. See KOCHAN, supra note 69, at 7.
    102. KOCHAN, supra note 69, at 6. The Utah Transfer of Public Lands Act will charitably exclude specially designated BLM and National Forest Lands. Id.
    103. DYAN ZASLOWSKY & T.H. WATKINS, THESE AMERICAN LANDS 141 (1994).
    104. See JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS 5-15 (1980).
    105. RODERICK FRAZIER NASH, WILDERNESS AND THE AMERICAN MIND 249-54 (2001).
    106. RONALD A. FORESTA, AMERICA’S NATIONAL PARKS AND THEIR KEEPERS 12-16 (1984).
    107. See ZASLOWSKY & WATKINS, supra note 103, at 141-48.
    108. KEITER & RUPLE, supra note 88, at 1-8.
    109. Laurence Tribe, Ways Not to Think About Plastic Trees, 83 YALE L.J. 1315, 1330-32 (1974).
    110. See, e.g., People for the Ethical Treatment of Prop. Owners v. U.S. Fish and Wildlife Service, 57 F. Supp. 3d. 1337, 1344-45 (D. Utah 2014).
    111. See, e.g., Branson Sch. Dist. v. Romer, 161 F.3d. 619, 638-41 (10th Cir. 1988).
    112. Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452-54 (1892).
    113. Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 285 (1997).
    114. Compare Winkleman v Ariz. Navigable Stream Adjudication Comm’n, 224 Ariz. 230, 235-36 (Ariz. Ct. App. 2010) with People v. Emmert, 198 Colo. 137, 141-43 (Colo. 1979).
    115. See KOCHAN supra, note 69, at 4.
    116. Hal Herring, The Darkness at the Heart of Malheur, HIGH COUNTRY NEWS (Mar. 21, 2016), https://www.hcn.org/issues/48.5/the-darkness-at-the-heart-of-malheur;
      Few Americans, even those in the cities of the East who know nothing about these lands, will be untouched by the transformation. Once the precedent for divesting federal lands is well set, the Eastern public lands, most of them far more valuable than those in the West, will go on the international auction block. The unique American experiment in balancing the public freedom and good with private interests will be forever shattered, while a new kind of inequality soars, not just inequality of economics and economic opportunity, but of life experience, the chance to experience liberty itself. The understanding that we all share something valuable in common—the vast American landscape, yawning to all horizons and breathtaking beautiful—will be further broken. These linked notions of liberty and unity and the commons have been obstacles to would- e American oligarchs and plutocrats from the very founding of our nation, which is why they have been systematically attacked since the Gilded Age of 1890s.
    117. See Shands, supra note 30, at 19-39.
    118. Todd C. Frankel, Fight Over Ozark Rivers Isn’t Waiting for Park Service’s Decision, ST. LOUIS POST-DISPATCH (Feb. 12, 2014), http://www.stltoday.com/news/local/metro/fight-over-ozark-rivers-isn-t-waiting-for-park-service/article_4660fb5cf7d6-5f5c-8358-c40eab1421c4.html.
    119. See Herring, supra note 116.
    120. United States v. Gettysburg Elec. Ry. Co., 160 U.S. 668 (1896).
    121. Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525 (1885).
    122. Free Enter. Canoe Renters Ass’n v. Watt, 549 F. Supp. 252 (E.D. Mo. 1982), aff ’d 711 F.2d. 852 (8th Cir. 1983).
    123. S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).
    124. NORMAN MACLEAN, A RIVER RUNS THROUGH IT 104 (1976).
    125. JOHN MCPHEE, BASIN AND RANGE (1982).
    126. See id.
    127. See id.
    128. See id.
    129. See id.
    130. See id.
    131. ANNIE PROULX, CLOSE RANGE 189-207 (2000).
    132. Richard Eder, Don’t Fence Me In, N.Y. TIMES BOOKS (May 23, 1999), http://www.nytimes.com/books/99/05/23/reviews/990523.23ederlt.html.
    133. See GRETEL EHRLICH, THE SOLACE OF OPEN SPACES (1986).
    134. See G. Joseph Cardine, WYO. ST. ARCHIVES, https://wyomingstatearchives.wikispaces.com/G.+Joseph+Cardine (last visited May 27, 2016).
    135. See Leo Sheep Co. v. United States, 440 U.S. 668 (1979).
    136. Elk Mountain Safari Inc. v. U. S. Dep’t of Interior, Bureau of Land Mgmt., 645 F. Supp. 151 (D. Wyo. 1986).
    137. See Leo Sheep Co., 440 U.S. 668; see also Elk Mountain, 645 F. Supp. at 155.