Oregon: Transfer public lands from feds?

by Sen. Doug Whitsett

The United States government owns more than 55 percent of all the acreage in Oregon. A total of more than 53,000 square miles, or 34 million acres, is held in federal title. Oregon has the fifth highest federal ownership percentage among all of the 13 Western states.

So what is wrong with this massive federal ownership of Oregon land and how did it happen?

The United States Constitution prohibits the states from imposing or collecting taxes on property owned by the federal government. More than half of the landmass of the state of Oregon is thereby excluded from Oregon’s taxing authority. Any existing or potential improvements located on that 53,000 square miles of federal land is also exempt from property taxation. This situation obviously creates a huge barrier to the adequate funding for Oregon’s schools, public safety, transportation infrastructure, and care for our most vulnerable citizens.

Further, the federal ownership of more than half of the landmass of Oregon functionally excludes it from economic development. Virtually all of Oregon’s businesses, jobs, wealth and infrastructure are found on the 40 percent of Oregon’s landmass that is privately owned. Conversely, virtually none is found on the 34 million acres of federally owned land. The burden of the cost of State and local government in Oregon is borne by the taxation of less than half of the lands of the state.

The management and the use of federal land for any purpose are controlled by the United States government. Laws and regulations regarding the management and use of the land are generally made by elected and appointed people who have little or no knowledge of the land or of its appropriate use. The certain result is that more than half of the land in Oregon has been severely mismanaged for decades.

Further, a constant litany of new rules and regulations has sequentially restricted public access to the federally owned lands creating ever-enlarging wilderness servitudes. Logging on federal forests has been reduced by nearly 95 percent during the past 25 years. Livestock pasturing on federal owned rangeland is being greatly restricted to the point of exclusion in many areas. Mining on mineral-rich federal property has been virtually eliminated. Exploration and development of oil and gas deposits on federal property has been greatly curtailed.

The new imperative for federal land appears to be to prohibit public trespass for any reason in order to protect, conserve and preserve our national heritage. That new imperative fails to recognize the reality that unmanaged land always returns to disarray, chaos and decay. The certain result has been massive forest and rangeland fires that are continuing to destroy that heritage for future generations.

Perhaps the strongest argument against the federal ownership of land within Oregon’s borders is that the federal ownership is arguably unconstitutional. Each state was admitted into the union on equal footing. Each state Enabling Act contains virtually the same language. Upon admission, each state ceded land that was not privately owned to the federal government with the contractual expectation that, with few exceptions, the federal government would sell that previously unclaimed land into private ownership. The alleged purpose of the transfer of title to the federal government was to establish unobstructed ownership to facilitate the future sale of the land.

The compacts stipulated that five percent of the net proceeds of the sale of the unclaimed land would be returned to the state. Further, the compacts provide that the title of any land not disposed of to the private sector would be returned to the state for the purpose of supporting the education of its citizens. The compacts do not provide for or envision perpetual federal ownership of massive tracts of land within the borders of the several states.

Unfortunately, Congress has failed to fulfill its contractual promise to dispose of the public lands in the Western states.

The concept of the federal government holding public lands in trust dates back to 1780. During the Revolutionary War, seven states pledged their claims over all the western land to the confederated government for the sole purposes of creating distinct republican states with the same rights, freedom, independence and sovereignty as the other states and to use any proceeds from the sale of the western lands to pay the debts from the Revolution.

Oregon was admitted to the union by an 1859 act of Congress following a state constitutional convention held in 1857. Although it did not have an enabling act, the state was admitted to the union with the same rights and privileges as all of the other states.

The United States pledged in the state Enabling Acts to sell the public lands within the borders of the new state that were retained by the federal government at statehood. It further pledged to divide the proceeds of the sale with the states.

The pledge was generally honored in the Midwest and Plains states where the federal government retains little land in federal title. The promise was generally broken following the admission of each of the 13 Western states where the federal government retains the title to more than half of the land in Oregon and to as much as 87 percent of the land in Nevada.

Further the federal government explicitly began to renege on its promise when Congress enacted the 1920 federal Mineral Lease Act. That public law continued to provide 100 percent of mineral royalties to states east of Colorado, but restricted mineral royalties to 48 percent for the Western states.

The Congressional failure to keep its word continued with the 1976 enactment of the Federal Lands Policy Management Act (FLPMA). That act unilaterally changed the 200 year-old obligation by retaining the public lands in federal ownership forever! The Congressional promises in FLPMA included management of the federal lands for multiple use and sustained yield with local planning. It also promised to make Payments in Lieu of Taxes to compensate the states for perpetual loss of property tax revenues. Those payments turned out to be about 13 percent of the average taxable value of the land. The pledge for multiple use, sustained yield, and local planning appear to be forgotten.

The 1993 Northwest Forest Plan severely restricted timber harvest on federal forest land. In fact, the Act has resulted in a nearly 95 percent reduction of timber harvest on federally owned land. The precipitous reduction in timber harvest resulted in the 2000 enactment of Secure Rural Schools and Community Self Determination Act (SRS). The payments received by the states through the SRS were a small fraction of the revenues that local communities had generated from harvesting and processing timber from federal lands. Congress now appears to consider the SRS payments as state entitlements. They have been sequentially reduced and have been on annual “life support” for several years.

The United States Supreme Court established the opportunity to reverse this absurd slide into total state subservience to the federal government in its 2009 decision in Hawaii v. Office of Hawaiian Affairs. The Court ruled unanimously that Congress does not have authority to unilaterally change or diminish the unique sovereign character of the admission of a state to the union. If Congress did have the authority to unilaterally alter the terms of statehood, states would cease to be states and would become mere administrative subdivisions of an all-powerful national government.

Five western states have now passed legislation to analyze the process for the transfer of public lands to willing western states. The state of Oregon should pass legislation to join Idaho, Montana, Nevada, Utah and Wyoming in that analysis. To continue to expect Congress to either keep its promises, or change its policies, appears to be a fool’s errand.

Senator Doug Whitsett is the Republican state senator representing Senate District 28 – Klamath Falls