Why public land auctions are a terrible idea for Western public land users

Although my love for the vast public domain is greater than words can describe, I believe the U.S. Constitution is far more important. I have long been an open proponent of reducing the federal estate to eliminate what our Founders knew as federal dominance. This argument and rationale are not based on the presumption that this land is unused, costs too much to manage, or is for financial speculation. It’s grounded in the constitutional principles that bind the federal bureaucracy and the hopeful restoration of traditional land management practices that should transfer this land to settlers under the Homestead Act as our Founders intended.

This is why Arizona Backcountry Explorers stood in opposition to the amendment to the One Big Beautiful Bill, proposed by Senator Mike Lee from Utah, that would have subjected our public lands to wholesale auctions, rather than land patents, under the guise of reducing the national debt and addressing affordable housing needs. As I will demonstrate in this article, the proposed public land auctions are not consistent with the traditional form of disposal and are contradictory to the Founding Fathers’ intentions for transferring this land directly to settlers rather than ESG-driven financial speculators.

The Issue of Federal Dominance

The federal government retains an interest in far too much land in the Western United States. The vast federal estate that overshadows private and state-owned land has created a disproportionate balance of power, known as federal dominance, and our Founding Fathers warned that it could lead to unchecked centralized power in Washington, D.C. Over 250 years later, this well-known fate of governments throughout history has come to fruition in the United States. The federal bureaucracy, with the help of the judicial branch, has reduced the role of states to symbolic shells of former powerhouses.

There are three main constitutionally grounded arguments on behalf of reducing federal dominance. First, the Constitution strictly limits the areas over which Congress may exercise exclusive legislative authority to areas known as federal enclaves. Article I, Section 8, Clause 17 provides that the federal government may only exercise such authority over lands purchased with the consent of the state legislature and used for specific purposes like forts, dockyards, or “other needful buildings,” otherwise known as federal enclaves. The vast tracts of federal public lands in the West—acquired through cession or treaty, not purchase—fall outside this scope, and most lack any record of state consent. As such, the federal government has no legitimate basis for claiming plenary jurisdiction over these lands. Therefore, they should not be managing or spending any money on these lands whatsoever. Returning management and control to the states is constitutionally consistent and necessary to honor the limits on federal power.

Second, the Tenth Amendment affirms that powers not delegated to the federal government are reserved to the states or the people. The Constitution delegates no general land-use authority to the federal government, nor does it authorize it to act as a permanent landlord or as a separate entity from the public. Land use, civil property law, and access rights have historically and properly been state-level functions. Federal retention and management of vast land holdings, along with regulatory regimes that restrict traditional access and use, violate the constitutional principle of reserved powers and strip communities of their right to determine how their land and resources are used.

Third, the framers of the Constitution, acutely aware of the dangers of centralized power, designed a system of checks and balances that included the division of power between the federal and state governments. James Madison, in Federalist No. 45, argued that the powers delegated to the federal government are “few and defined,” while those remaining with the states are “numerous and indefinite.” This decentralization was intended to prevent the accumulation of too much power in one entity, thereby safeguarding individual liberty and preventing tyranny. Moreover, states are better positioned to understand and respond to the unique needs and preferences of their citizens. Reducing federal dominance allows for more tailored, effective, and responsive governance at the local and state levels, enabling innovation in policy and allowing for greater citizen participation in governmental processes.

Local Control Does Not Mean State Ownership

Public domain lands are not state trust lands that were appropriated to states during statehood for the purpose of common schools and other beneficiaries. Since the founding of this nation, only the federal government has authority to liquidate land of the public domain. States cannot and never have liquidated public domain lands, only state trust lands. The Enabling Act of nearly every state west of the Mississippi River contains reservations for disposition purposes of the unappropriated land of the public domain to the federal government while ensuring the state receives a portion of public land sales.

This means that the federal government’s sole purpose for the public domain is to liquidate land, timber, and minerals. In contrast, the states retain exclusive legislative jurisdiction over all other matters including land management and criminal law. The federal government should not be managing anything besides what is within its limited jurisdiction. The federal government is a servant estate that is obligated to the will of the dominant sovereign states so long as its interests do not face an undue burden.

Why Wholesale Auctions Are Not the Answer and How to Counter Federal Dominance

Our Founding Fathers tried to mitigate wholesale land transfers through the U.S. Constitution and the various mining and homestead laws which were designed to transfer ownership of land to the people. They feared that foreign interests and wealthy speculators would buy up western lands and designed a system to limit how much land an individual could acquire. Under the various mining and homestead laws, any citizen could claim limited amounts of public land and purchase the land from the federal government after developing and occupying it for 5 years.

This enshrined the most incredible form of private property ownership the world had ever seen. It ensured that land would not be gobbled up by landed gentry or big government and instead be transferred to anyone daring to conquer the western frontier. By simply finding a piece of land that was not already claimed (open for entry), claiming it as yours, irrigating crops, building a dwelling, and occupying the land for five years, any citizen or legal immigrant could buy the land from the United States Government for around $20 an acre in today’s terms (adjusted for inflation).

Although the Homestead Act of 1862 is repealed by Section 703 of the Federal Land Policy Management Act, to this very day millions of acres of public domain lands are “open for entry” and are available for homestead and mining purposes. In the United States, public lands are designated as either open to entry or withdrawn from entry. Lands that are open to entry are available for settlement, mineral exploration, or other uses under laws like the Homestead Act or the General Mining Act. Withdrawn lands are removed from such entry—typically reserved for federal purposes such as military use, conservation, or national parks—and are no longer available for private acquisition or mineral claims.

Unlike the Land Ordinance of 1785 and the Homestead Act of 1862, wholesale public land auctions proposed under Mike Lee’s public lands amendment would not transfer to individuals under a land patent system that is within the constitutional framework designed by our Founders and which built the West. It will be auctioned off to the highest bidder where ordinary people can’t outbid multi-billion-dollar multinational developers, hedge fund managers, and ESG-driven financial speculators.

Repeal Section 703 of the Federal Land Policy Management Act

Reducing the federal estate should not be done through wholesale auctions. Instead, it should be done by repealing Section 703 of the Federal Land Policy Management Act that repealed the Homestead Act of 1862 and multiple western land laws put in place by the Founding Fathers. Repealing Section 703 will also reenact Revised Statute 2477 which will permanently remove the vast majority of roads on federal land from federal control and reopen them to public use under state law.

The laws that establish the mechanisms necessary to unleash the economic might of the Western frontier exist in their current form as they were created by the brave men who built this Nation.

Repealing Section 703 of the Federal Land Policy and Management Act would be a historic restoration of the original American vision that land exists to empower citizens, not to be hoarded indefinitely by distant federal agencies or auctioned off to corporate and foreign interests. By reviving the Homestead Acts and rejecting the federal government’s policy of permanent land retention, this repeal would restore access and opportunity to Western ranchers, farmers, off-roaders, and working-class Americans who have long been locked out of their own public domain. It would breathe new life into the spirit of Manifest Destiny—not in the context of conquest, but in the righteous expansion of freedom, property ownership, and self-reliance—fulfilling the American Dream for those seeking to build a future with their own hands. Constitutionally, it would correct federal overreach by reaffirming that public lands are held in trust for the people for their intended purposes, not as permanent federal colonies, and morally, it would prioritize American families, veterans, and workers over global land speculators and elite conservation deals.

Expanding Federal Powers

Instead of restoring the Republic, Mike Lee’s amendment would have expanded federal bureaucratic powers that have destroyed the Western way of life. It will give federal bureaucrats the power to determine the minimal amount of land sold, how the land will be sold, and establishes ambiguous declarations that leave interpretation up to agenda-driven and unelected bureaucrats. This is exactly how we get bureaucratic regulations that are inconsistent with legislative intent and the consent of the governed.

Under the proposed amendment, the only places exempt from wholesale public land auctions were protected areas that have been established under strict environmental policy and have already closed roads, prohibited camping, prohibited human activity, prohibited mechanized equipment, and a litany of other highly restrictive regulations. Furthermore, many of the most incredible places on public lands do not have any type of protected designation, thereby not falling under any of the exemptions in the proposed amendment. Many people have fought against these protective designations because they interfere with traditional public land uses by restricting grazing, mining, and access to real property.

Read the most recent version of Mike Lee’s public lands amendment below that would have enabled wholesale public land auctions.

Nearly 1 Million Homes Are Already Planned for Development in Arizona

According to Mike Lee and other supporters of the public lands amendment, there is a lack of available land for housing developments which has driven prices up. According to some, us Westerners are selfish for not wanting housing developers to gobble up the lands we rely on. This simplistic view is simply not true and demands that you ignore the massive amounts of development already taking place all over the United States on lands that have already been sold. They also believe this land should be turned over to developers rather than individual families because the land is hard to access, mismanaged, or costs too much to manage.

According to the Arizona Department of Housing, as of 2022 Arizona has a housing deficit of about 250,000 homes. In contrast, between the cities of Surprise, Buckeye, and Apache Junction, there are nearly 1 million homes planned for development on state trust lands and farmland that have already been sold to developers. To bring housing prices down, not only will the housing market need to surpass the housing deficit, but supply chain prices and the overall cost of building a home must also reduce. These issues are compounded by lingering and reaffirmed policies of the 2008 housing crash and the COVID-19 pandemic.

There is no justification for these types of wholesale actions that will disenfranchise Western America. Fortunately, this amendment was stripped from the One Big Beautiful Bill and was not enacted. However, rumor has it that similar legislation will be reintroduced in the future. Stay tuned to AZBackroads.com to keep updated with issues that affect your access to public lands.