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Border Security

CONFIRMED: President Trump Can Sell Federal Land To Build The Wall

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To build a wall along the United States’ international border with Mexico, President Donald Trump could order the sale of approximately 500,000 to 5 million acres of federal land.  The U.S. Government currently claims ownership of about 640 million acres of land — or about 28% of the total land mass of the nation.  This could raise the entire $25 billion needed to finance building the wall (not just the next installment we are currently fighting over).

But one must understand that out of 640 million acres there is a vast diversity of terrain. The task is to select only between around 0.08% to 0.78% of that total land. Most federally-owned land is not suitable.  But some land would be appropriate for sale to the State government, the County, or the general public.  Some Western public land is nothing but empty grassland, just ordinary grazing land. Some public land is indistinguishable from the type of land currently owned and used by private citizens. In some cases, there seems to be no plausible reason for the federal government to be holding the land at all.

Decisions about which public lands within a state to consider as candidates must be nominated by each State government.  It cannot be the President deciding, because left-wing interests groups will demagogue the issue.  The State must identify which lands are not environmentally sensitive, culturally historic, important for scenic or recreational purposes, or reasonably claimed by Native Americans.  Throwing those decisions to the States allows all the stake-holders to debate the choices, minimizing left-wing hysteria.

The wisest plan might be to sell federal land to the State or County government at a discount, like $5,000 to $10,000 per acre on average.  This would allow the State or County to then decide what is best to do with that land, including deciding when if ever to sell the land to private owners.  Transferring the land at a very low price might win support from some States or Counties (ignoring those who don’t want to participate).

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Section 203 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1713(a), allows a tract of the public lands that is managed by the Bureau of Land Management (except land within the National Wilderness Preservation System, National Wild and Scenic Rivers Systems, and National System of Trails) to be sold by the Secretary of Interior.

In fact, a recent court case just upheld the unrestricted right of the U.S. Government to sell public land.  On November 2, 2018, a federal judge in California struck down a California law SB 50.  The law was actually quite mild, giving the California State Lands Commission the first shot at buying any land that the U.S. Government wants to sell.  This is actually a reasonable position, that perhaps should be built-in as a policy nationwide.  Why not let the State or County have a right of first refusal, to make as many people as happy as possible about the sale?

But the Trump Administration filed a lawsuit. Judge William Shubb ruled that the power of the federal government to sell the land it owns to anyone it wants is so clear and powerful, that California cannot restrict who the land can be sold to.  In other words, the land can clearly be sold.

Critics will focus, as always, on the wrong examples. This is why each State — not the President — must select and nominate candidate land after debate within each State.  Depending on the politics of their leadership, some States will not participate at all.  Not a problem.  There are plenty of other options.  Some States will be eager.  Talk to those States, not the trouble-makers.  (In fact, that was California’s rationale for its law:  They wanted to make sure that sensitive public lands were not being sold to private buyers.)

Excessive Federal ownership of 554 million acres of land in 12 Western States is a source of enormous irritation.  The U.S. Government owns 47% of all the land in the West and as much as 84.9% of Arizona.  There have been intense campaigns like the Sagebrush Rebellion in the 70s and 80s to demand this be changed.

Trump would spark a surge of support heading into the 2020 election if he simply convened a blue ribbon commission to review and examine the possibility of releasing or selling federally-owned land.  Trump would earn the undying loyalty of an intense group of involved citizens.

We would be remiss, though, in failing to notice that many of the Sagebrush Rebellion critics of federal ownership argue forcefully that the U.S. Government’s claim on 554 million acres in those 12 Western States is illegal and unconstitutional.  There is even at least one lawsuit now pending, with strong legal arguments and historical proof that the U.S. Government was authorized only to hold that land like a trustee, never to actually own that land.  Those legal challenges insist that the U.S. Government illegally and unconstitutionally converted temporary stewardship into a claim of ownership.  The land was supposed to be distributed as new States became established and organized practically.

However, for the purposes of this proposal, there is still a super-abundance of federally-owned land regardless of such disputes.   In West Virginia — part of the original 13 colonies then part of Virginia — the U.S. Government owns 1,133,587 acres (7.4% of the total State). In Tennessee, 1,273,175 acres (4.8%) are owned by the federal government.  Among the original 13 colonies, in New Hampshire, 798,718 acres (13.8%) and in Georgia, 1,474,225 acres (4%) are owned by Uncle Sam.  In Pennsylvania 617,339 acres (2.1%) are federally owned , and in Virginia 2,514,596 acres (9.9%).  Likewise 4,599,919 acres of Florida (13.2%) and 1,793,100 acres of Wisconsin (5.1%).   In Texas, the U.S. Government owns 2,998,280 acres (1.8%).

Clearly, federal lands include tracts that should remain publicly-owned.  There are national forests, parks, military bases, and such that obviously should be maintained as public lands (although perhaps the State governments could handle some of these with more local knowledge and awareness).  A shocking 13.2% of Florida is owned by the U.S. Government, but we are not going to consider selling the Everglades nor vast stretches of watery grasslands.  But when 23,870,652 acres of Colorado (35.9%) are federally owned, you’re going to find at least a few hundred thousand acres that are really over-kill and could be sold off.

As a lawyer with an (inactive) real estate sales license, this author glanced quickly at some real estate listings for ranch land for sale in Arizona.  It rapidly becomes clear that the price at which Western land is for sale is “all over the map” (literally and figuratively), from under $1,000 per acre to over $45,000 per acre  With varying locations and terrain, one cannot generalize easily even within the farm land / ranch land market.  Therefore, $25 billion might be raised by selecting the most suitable land totaling anywhere from 500,000 acres to 5 million acres.

However, the Trump Administration’s legal teams need to prepare for Trump’s bold and innovative initiatives carefully to achieve success.  Trump should maintain his energetic momentum, but anything worth doing is worth doing carefully and right. A lot of legal groundwork must be laid first.

Any plan by any Administration for giving up Federally-owned lands must be carried out with great caution.  Different parcels of land come under very different legal regimes and considerations.  Most is managed by BLM, but not all.  Different legal requirements apply in different cases.

The law requires the Secretary of Interior to officially make certain findings about a particular parcel of real property in order to activate the legal right to make the sale. The process has to be implemented with meticulous care by officials who are not sabotaging the goal. A particular tract of land must be already governed and managed within the BLM’s “land use planning” procedures. The Secretary must then make a formal determination that:

(1) such tract because of its location or other characteristics is difficult and uneconomic to manage as part of the public lands, and is not suitable for management by another Federal department or agency; or

(2) such tract was acquired for a specific purpose and the tract is no longer required for that or any other Federal purpose; or

(3) disposal of such tract will serve important public objectives, including but not limited to, expansion of communities and economic development, which cannot be achieved prudently or feasibly on land other than public land and which outweigh other public objectives and values, including, but not limited to, recreation and scenic values, which would be served by maintaining such tract in Federal ownership.

Furthermore, we will face the same debate about whether the funds raised can be “reprogrammed” to specific projects, like building the wall, rather than being dumped into the general fund of the U.S. Treasury. But that involved legal debate will have to be explored in another installment.

“Reprogramming” federal funds from one program to another is a real thing that happens all the time.  Trump’s legal team will have to burn the midnight oil to navigate the details. And Big League Politics will have to point the way in a later installment.

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