The Transfer of Public Lands Movement: Taking “Back” Lands that were Never Theirs and other Examples of Legal Falsehoods and Revisionist History

Like the sagebrush rebels before them, today’s transfer advocates feel left behind by evolving public land management priorities that depart from their vision of how the West should be managed. The TPLA and its progeny appeal to that pain and frustration, but offer only empty answers to real questions, and in so doing, distract us from opportunities to address the root causes of frustration over public land management. The law is clear, the federal government possesses plenary power over the public domain, including the power to retain the land in federal ownership, and to do so indefinitely. The federal government is not obligated to dispose of additional public land — beyond the almost 400 million acres of land surface it already gave up in the eleven contiguous Western states — and statehood enabling acts do nothing to change this settled legal reality. Even if transfer advocates overcome long legal odds and a disposal obligation is found to exist, such an obligation would not necessitate giving the land away, let alone giving the land to the states. Furthermore, that duty to dispose would almost certainly not extend to lands that are mineral in character, leaving states without the revenue they would need to manage the lands they fought so hard to obtain. States would be faced with significant fiscal and policy challenges, and the public would see fewer and fewer opportunities to engage in land management decisions. The fate of our Western public lands matters, as does the fate of those communities that depend on our public lands. We must look beyond the empty promise of easy riches and begin the hard work needed to address profound questions raised by evolutions in public land management policies, including what we owe to those who live closest to the public domain. Their pain and frustration are real, and that pain and frustration need to be addressed if the next generation is to avoid revisiting these same battles. There are opportunities to improve public land management: updating laws, consolidating lands, fully funding agencies and community development, and cooperating with our neighbors all hold promise