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Federal Dominance | Something our founding fathers warned us of
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Our founding fathers warned us of the federal government’s dominance over sovereign states.
Representative Mark Finchem and I explain the constitutionality of Federal Public lands within a sovereign state. Our founding fathers were worried the federal government could exercise power over sovereign states. The federal government’s restrictions are clearly stated in the US Constitution.
By Representative Mark Finchem and Kevin Allard
Originally published in the Western Journal.
Almost everyone at one time or another has enjoyed the great outdoors on or near so-called “public lands” with little or no thought about what the term means or what government entity possesses control over the land that the public is supposed to have access to.
Over time, the term “public lands” here in the United States, and more specifically in the Western U.S, has come to mean land possessed by the federal government that lies within state boundary lines.
First, the matter of Constitutional authority:
Several public policy flaws arise from the notion that the federal government should possess any land within a state other than to secure an enclave as defined by the United States Constitution.
Under Article I, Section 8, Clause 17, the framers agreed “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”
Next, the matter of Statehood and Domination:
There are three legal contracts commonly accepted in American jurisprudence that are the foundation of statehood. They include “The Equal Sovereignty Principle, The Equal Footing Doctrine, and The Compact Theory.” Each of these foundational components of American statehood jurisprudence points to the serious question of whether Congress can abrogate a contract — an enabling act — made at the granting of statehood with so-called “needful laws.”
In the well-documented Madison Debates of Sept. 5, 1787, over what should be memorialized about the power of the federal government to purchase land for the seat of government and needful installations such as Federal arsenals, forts, and such, the framers Sherman, Gerry, King, and Morris debated the need for language in Article I, Section 8: “[they] thought himself the provision unnecessary, the power being already involved: but would move to insert after the word ‘purchased’ the words ‘by the consent of the Legislature of the State’ This would certainly make the power safe,” (Yale, 2020, Pg. 1).
Just before Mr. King’s statement, Elbridge Gerry warned of domination by the federal government, contending that “this power might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the Genl. Government” (Yale, 2020, Pg. 1).
And so it has come to pass that the very thing Mr. Gerry and Mr. King debated might or might not happen is now the norm, rather than the exception in dealings between Arizona — and indeed other sister Western states — and the federal government. Federal agencies never seem to be satisfied with the level of control they possess by an act of Congress. In an ever-expanding agenda, they seem to prove the very argument that Elbridge Gerry warned of.
There are major changes in public-lands access proposed for our National Forests as an example. These changes will directly impact rural communities, industry businesses, jobs, tax revenue, conservation, fire management, the Arizona OHV fund, recreation, private property, state rights, and state agencies’ overall ability to fulfill their duties.
Many pro-mixed-use public-lands groups have come together, including the American Mining Rights Association, the Gold Prospectors Association of America, the Blue Ribbon Coalition, UTV Utah, the Arizona Association Of 4 Wheel Drive Clubs, the Rocks and Wheels 4×4 Club, Summit 4×4, Arizona Overland, the Average Joe 4X4 Competition and several others, including industry business leaders.
Together, these groups have over 250,000 members comprising the off-road community, and they contribute significantly to outdoor recreation in Arizona. Members of this community are concerned about the changes proposed by the United States Forest Service and the Bureau of Land Management. Several published articles are available to help with research material concerning these changes. (To learn more details, follow the hyperlinks below.)
Current changes that have been proposed, the state and federal laws that are being violated, and what has previously been done concerning BLM is detailed below. The reader should be mindful this Op-Ed addresses just five of over 50 proposed changes that need the attention of the secretary of the interior and secretary of agriculture and Congress.
Travel Management Planning
In 2015, the Forest Service put new rules in place for motorized travel. This new rule nullified old federal regulations and created 36 CRF 212 Travel Management. Under these new Travel Management Rules, thousands of miles of roads have been closed all over Arizona. Arizona isn’t the only state that has these issues. Every state across the West has fell victim to 36 CFR 212 Travel Management.
The Forest Service is closing these roads based on environmental protection. According to their documents, both places with cultural-historical significance and places with no significant destination value will be protected. Campsites, hiking trails, roads, and developed recreation areas that are in, near, or around these areas are threatened with closure. We believe these terms can describe nearly every place in the National Forest.
Apache-Sitgreaves National Forest
532-mile proposed road closure around Showlow, Snowflake, Alpine, Greer, and Blue
Includes 25 miles of the historic Rim Road Forest Road 300 and the closure of hundreds of dispersed campsites
Read the article and find the documents here.
Tonto National Forest
1,460-mile proposed road closure
1/4 of the forest roads in Tonto
Follow this link to learn more
Coronado National Forest
Coming soon; expecting it by the end of the year
Follow this link to learn more.
Resource Management Planning
Tonto National Forest Resource Management Plan
The Forest Service is proposing some drastic changes in the way the Tonto National Forest is managed. The agency proposes the closure, decommissioning, and removal of developed recreation areas, interpretive centers, dispersed camping areas, developed camping areas, and several other areas that are used every day by Arizona residents.
Furthermore, the plan calls for the decommissioning of campsites, recreation areas, roads, and hiking trails with “no significant destination value” — a term some of us believe to be very dangerous. Roads with more than a 10 percent grade; drive to mountain tops or along ridgelines, or cross rivers or unstable soil are all slated for closure but unspecified in their plans. Locations of cultural or historical significance are kept confidential while the Forest Service closes recreation opportunities in, near, or around these areas.
This plan also includes OHV and wilderness permit zones, 49 proposed wilderness areas, and 20 proposed Wild and Scenic Rivers, which in themselves bring their own sets of regulations.
Read the material on this plan and find documentation at this link.
Four Forest Restoration Initiative
Rim Country Restoration Project
The Rim Country Restoration Project is a collaborative effort between the Tonto, Coconino, and Apache-Sitgreaves National Forests. The plan includes a lot of commonsense projects that are far overdue. However, nested in the plan is the closure of over 1,200 miles of unspecified forest roads. Unlike a Travel Management Plan, the Forest Service does not tell what roads are being closed.
The area affected by the proposal includes approximately 540,020 acres on the Black Mesa and Lakeside Ranger Districts of the Apache-Sitgreaves National Forests, 398,880 acres on the Mogollon Rim and Red Rock Ranger Districts of the Coconino National Forest, and 299,710 acres on the Payson and Pleasant Valley Ranger Districts of the Tonto National Forest.
Road decommissioning would occur on approximately 200 miles of existing system roads on the Coconino and Apache-Sitgreaves National Forests and approximately 290 miles of roads on the Tonto National Forest. Up to 800 miles of roads on all three forests could be decommissioned.
Read more on this with documents at this link.
Economic Impact
The economic impact of the outdoor community in Arizona is enormous. There is no doubt that jobs and funding for vital programs will suffer the consequences in rural Arizona. As motorized access and other recreation opportunities shrink, so will local tourism. The weekends bring loads of visitors from all over the world to enjoy our motorized trails. Areas such as Sedona, Grand Canyon, and Mogollon Rim generate millions, if not billions, of dollars for the local economy and produce thousands of jobs for Arizona residents.
The Arizona State Parks and Trails and Arizona State University recently studied the economic impact of the off-road community in Arizona. The study shows around 1.8 billion dollars in consumer spending every year. The study suggests that 1.6 million Arizona residents contribute over 360,000 dollars in annual tax revenue and create 22,000 jobs.
View the report here.
Likewise, the Outdoor Industry Association estimates Arizona’s outdoor community generates 21.2 billion dollars in consumer spending and 1.4 billion in state and local tax revenue and creates 201,000 jobs.
View the report here.
RS 2477 and Arizona Revised Statute 37 931
Many of these roads fall under the old Mining Act of 1866 and are considered RS 2477 Rights of Way. The Arizona legislature has passed legislation giving Arizona broad authority over these roads. Arizona Revised Statute 37.931 is Arizona’s claim on all RS 2477 roads over federal lands. Attorney General Mark Brnovitch reasserts these claims and explains the law in full detail.
The Mining Act of 1865 was repealed by the Federal Lands Policy Management Act of 1976. However, FLPMA allowed all existing roads under RS 2477 to remain valid. In a nutshell, the federal government cannot close any road or “right of way” built before 1976. Only an Arizona court of competent jurisdiction has the authority to close a RS 2477 Right Of Way.
This is written in both federal and state law.
Congressional Review
There is a solution, and it’s used every day to wage lawsuits against the federal government. This section will go through two examples used on both the Bureau of Land Management and the Forest Service.
These Congressional Review laws apply to every single regulation or rule enacted by every federal agency. Failure to follow this law can result in the rules being overturned across the country, counties or states being exempt from rules, and out-of-court settlements. The Congressional Review Act requires every federal regulation that falls under the definition of “rule” to go to Congress for a vote. We have learned that neither the Forest Service nor the Bureau of Land Management has sent a single regulation for congressional review through previous court proceedings.
On Oct. 23, 2017, Sen. Lisa Murkowski of Alaska submitted the Tongass National Forest Resource Management Rule to the Government Accountability Office (GAO) for congressional review. The GAO determined the plan met the agency’s definition of “rule.” In response, Alaska filed a lawsuit against the Tongass National Forest to overturn the rule. As a result, the Forest Service settled out of court by exempting Alaska from the Resource Management Planning.
Read the final decision from the GAO here.
In 2018, Arizona stopped the Bureau of Land Management from closing thousands of miles of roads. Arizona completely overturned the rules across the entire country. The Bureau of Land Management Resource Management Plan 2.0 was overturned “as if it had never taken effect.” This effectively stopped and reopened every road that was closed by BLM travel management plans across America.
A Mohave County supervisor took the issue to the White House when she attended a meeting on rural economic development. She explained the biggest economic threat in Mohave County is the BLM Travel Management Plans. The Kingman Travel Management Plan ended that day.
Under the guidance of the Congressional Western Caucus, Resource Management 2.0 was taken to Washington for a final resolution. Both the House and Senate unanimously agreed to disapprove of the Resource Management 2.0 rule. The final decision was published in the Federal Register on Dec. 21, 2017, and became effective immediately. It’s a victorious read.
Read the final decision here.
It all started right here, in Arizona, with a Mohave County Supervisor. Read the story here.
Conclusion
The off-road and outdoor communities urge you to support these issues. On behalf of the 250,000-plus members of the groups mentioned above, we ask that we bring this to Washington for a final solution. Removing Forest Service regulations 36 CFR 212 Travel Management, 36 CFR 261 Prohibitions, and 36 CFR 219 Planning will stop the over-regulation that is killing rural Arizona. It will reopen roads and recreation opportunities across America and bring the much-needed rural consumer spending.
With around 3,400 miles of dirt roads over federal land and developed recreation areas facing closure, we believe it’s important for you, as a servant of the people, to take this to Washington for a final solution. Arizona did it before, and we will do it again. Knowing you have the support of so many, it should be no problem.
Arizona’s motorized trails are not just a dusty path to nowhere. These roads are part of Arizona history — from the Hualapais to Bradshaw to the towering sky islands. These mountains were once a beehive of activity from the mid-1800s to the 1930s. Rich mining towns attracted people from all over the world in search of a better life — including some of Arizona’s most memorable pioneers. The roads provided access to hundreds of mining claims, homesteads, and ranches and were vital to the settlement of Western America. Closing these roads would be closing our history to the very people who were supposed to enjoy them.
The federal government is now exercising what our Framers once thought unthinkable: the limited federal government’s domination over a state sovereign.
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