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From the August 2001 Idaho Observer:
The Big Lie: Federal ownership of public lands
By Hari Heath
With a series of unconstitutional takings, beginning almost
a century ago, the federal government now claims to own
almost two-thirds of Idaho. Most of that
“ownership” is claimed as lands
“administered” by the Forest Service.
This is one of the lies that, having been told often enough,
is now believed to be true. We want to believe in the
sanctity of our national parks, wilderness areas and forest
lands. They are a wonderful public resource. However, the
truth is, the federal government is constitutionally
prohibited from owning this type of property within a
state.
Political power often leads to corruption, and in Idaho,
like everywhere else, the federal government has become the
very definition of corruption. Just like the native
peoples, whose treaties with the federal government have
been broken, much of Idaho's public lands have been stolen
by the Great White Father in Washington, D.C.
Any comparison between constitutionally formed government
and the usurpers in the administrative regimes which now
rule us becomes a study in deceit and deception. Pick any
subject that is “governed” and look into the
legitimate constitutional authority and limitations to
govern that subject. Compare these constitutional facts of
life with how government is operated today.
This is also a wonderful study in how the Hegelian
opportunists in the administrative realms find or
manufacture a problem, proclaim themselves to be the
solution, and secure a job for life at public expense. Once
a small problem is discovered and they have secured their
position as the solution, these opportunists become well
positioned to multiply the problems they claim to be
solving, until an unfathomable depth of bureaucracy is
formed. Today's Forest Service provides just such an
example.
In the words of Gifford Pinchot, who championed his cause
and became the first chief of the Forest Service, “the
fundamental idea of forestry is the perpetuation of forests
by use.” He said the federal forest reserves were
needed, “rather to help the small man making a living
than to help the big man to make a profit.”
What began as a solution to the fraudulent schemes of the
timber barons of a century ago now prevents many a small
man from making a living, while disease and insects devour
accessible timber. No longer helping the small man, the
forest service now requires a “permit” to travel
on many “wild” rivers and wilderness areas, or to
park a vehicle near a cross country ski trail. By
administrative edict, they have recently made it a crime
for the public to drive on a majority of the forest road
system.
Through a “test program” called the
“Recreation Fee Demonstration Project” they are
applying the thin edge of the wedge to turn public lands
into a private business for bureaucrats. “Four federal
public land agencies have been empowered to test various
ways to provide increased benefits to visitors of public
lands through recreation-use fees,” says the Forest
Service brochure, “Our National Forests.”
Whose national forests? How have we become subjected to
these convoluted schemes? Or more importantly, does the
federal government have any business administering public
lands within a state? Let's look at the facts and the
history behind the BIG Lie.
The constitutional facts of life
The founders of America drafted the United States
Constitution to form a limited federal government. It was
designed to take care of only those things which were truly
our national business. The state governments or the people
were to keep all other powers. Article One, Section 8,
Clause 17, offers the only provision in the Federal
Constitution for federal ownership of land. It provides for
the creation of Washington, D.C. as the seat of the federal
government and allows the federal government to purchase
lands in a state with “...the consent of the
legislature of the state in which the same shall be, for
the erection of forts, magazines, arsenals, dockyards, and
other needful buildings.”
This is the only kind of property that the federal
government is empowered to own in a state. The federal
government cannot own forest lands. Why? Because no such
power has ever been delegated to it and the Tenth Amendment
prohibits the federal government from assuming any power
which has not been delegated to it by the Constitution:
“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the
people.” This is the first constitutional fact of life
preventing federal public land ownership within a state.
The state of Idaho began as the Idaho Territory. This
federal territory was acquired by a treaty with Great
Britain, popularly known as the Oregon Treaty and from
treaties with the Indian tribes. Most of Idaho was to
become Indian reservations until gold and other valuable
interests were discovered. Then the federal government
wouldn't keep its word with the Indians. This caused wars
when the federal government imposed new treaties taking
away more native lands. However right or wrong the
treatment of the Indians and their treaties were, the Idaho
Territory was formed and became a federally-held property.
In 1890, Idaho was admitted as a state in the union and
its government was formed by the state Constitution.
Article Ten, Section 4, of the Idaho Constitution says
“All property and institutions of the territory,
shall, upon the adoption of the Constitution, become the
property and institutions of the state of Idaho.”
This second constitutional fact of life conveyed the
territorially held lands to the new state.
“The people,” at least the 64 people who signed
the Idaho Constitution, gave up their interest in the
public lands in Article Twenty-one, Section 19, of the
Idaho Constitution. That section states in part: “And
the people of the state of Idaho do agree and declare that
we forever disclaim all right and title to the
unappropriated public lands lying within the boundaries
thereof ... and until the title thereto shall have been
extinguished by the United States, the same shall be
subject to the disposition of the United States...”
This is the third constitutional fact of life.
Those 64 people, acting as a constitutional convention for
Idaho, essentially quit claimed “the people's”
interest in the public lands. It is important to remember
that the Idaho Constitution was signed at the convention in
August of 1889. Idaho was still a federal territory then.
The title to the unappropriated lands remained with the
federal government until Idaho became a state the following
year.
Many things happened when Congress passed the Idaho
Admission Act in 1890. Idaho was admitted into the union as
a state on an equal footing basis with the other states.
Congress also “accepted, ratified and confirmed”
the Idaho Constitution in the Idaho Admission Act. Some
public lands were specifically appropriated in the
Admission Act, as state endowment lands for schools and
other state purposes.
The other remaining public lands were not specifically
granted to the state for particular purposes.
As a state, Idaho's relationship with the federal
government also changed. Once Idaho was no longer a
federally-held territory, the Federal Constitution imposed
new limitations on the federal government. They were now
prohibited from owning non-military property in the new
state, initiating the first constitutional fact of life.
When Congress accepted, ratified and confirmed the Idaho
Constitution, they both conveyed any unappropriated lands
held as property of the Idaho Territory to the new state of
Idaho and released any interest “the people” may
have had in those lands to the state, giving the state
clear title to the unappropriated lands. This
“extinguished” the United States title to those
lands since the federal government was now prohibited from
owning them and “forever disclaimed” the people's
interest in the unappropriated public lands, bringing the
second and third constitutional facts of life into force
and effect.
The beginnings of the Big Lie
So how did we get federal forest lands in Idaho?
Constitutionally, after obtaining the consent of Idaho's
legislature, the federal government can own a fort or a
building, but not public forest lands. Did those in the
seat of federal power pay attention to the truth and abide
by the limitations imposed by the Constitution which gave
them the power in the first place? Even though statehood
was achieved, the federal government continued to treat
Idaho as if were still a federal territory.
Just as they did to the Indians, the federal government
would eventually take back much of the lands which became
state property. Using both the hammer of the law and a
seemingly benevolent administration, the Big Lie was
forged.
Idaho became a state during the industrial revolution.
While the wheels of industry were rolling in the east,
Idaho was still a relative frontier, with largely untapped
natural resources. Timber and minerals were the main items
of industrial interest. Many industrialists were already
capitalizing on the new state's abundance.
As is often the case when greed is a prime motivator, many
of those involved engaged in less than honorable conduct. A
great land grab was underway. Beginning in the Great Lakes
region, timber Barons and speculators had spread their
schemes to the Northwest.
Taking advantage of federal programs to sell land to
settlers and homesteaders, the unsavory schemers would use
dummy settlers to file false claims or they would
“sponsor” settlers who would sell the lands back
to them soon after they were acquired from the government.
The Timber and Stone Act of 1878 permitted individuals to
buy up to 160 acres of timber or stone at $2.50 an acre
provided the land was solely for their own use and they had
made no prior agreement to convey the title to another
person. These near give-away programs, intended to benefit
the common man, ended up benefitting the industrialists who
picked up properties at a fraction of their value.
The “solution” to the “problem” had a
two-pronged approach. Prosecutions for land fraud began
while a federal scheme to “reserve” and
“administer” these lands and their resources
emerged. Good intentions have paved many a dark highway.
Timber fraud in high places
Oregon was one of the first places where prosecutions for
timber fraud were initiated. An Oregon land ring had been
gobbling up public land in Oregon and California. Former
Oregon congressman Binger Hermann, was then head of the
General Land Office, which sold lands to settlers. Agents
discovered a major scandal that led to his resignation.
He was indicted for burning his files but was never
convicted. Oregon's senior senator John Mitchell was
convicted for taking a bribe. Eventually, a congressman, a
U. S. Attorney, a U. S. Commissioner and three state
senators were caught in the scam. Oregon's other U. S.
Senator Charles Fulton was also suspected of being involved
in the land frauds.
In 1907, evidence emerged that created much suspicion of
similar land frauds in Idaho. The Barber Lumber Company of
Wisconsin had obtained 40,000 acres of timberlands in the
Boise Basin through fraudulent schemes that involved
well-connected Idaho political figures.
Among those suspected was Idaho's Senator William Borah,
who had been the attorney for the Barber Lumber Company.
Borah and ten others were eventually indicted. This all
occurred during very “interesting times” in Idaho
history. Borah was under indictment for the land frauds
while he was also appointed as a special prosecutor for the
murder case against the miners who allegedly had blown up
and killed Idaho's Governor after the mining wars in the
Silver Valley.
The unrest from the mining confrontations was still a hot
issue as Pinchot and Roosevelt doubled the size of the
National Forests, many of them in Idaho.
Good Intentions and the Great Theft
The timber resources of the country were being cut at a
rate that alarmed many people. “America had but twenty
years of timber left,” said Gifford Pinchot. Pinchot
said Theodore Roosevelt's timber policy was to provide
“the greatest possible good to the greatest possible
number.”
Such was the cry of the eastern socialist offering his
“solution.” As an aristocrat with a passion for
public service, Pinchot was the architect of Roosevelt's
conservation policy and the force behind its
implementation.
Pinchot was educated in Europe and later at three of
America's best private schools. At Yale, he was inducted
into Skull and Bones, the colleges most prestigious secret
society. Yale offered no forestry courses and the
profession didn't exist in the United States, so he
enrolled in the French Forest School at Nancy. There he
learned that “forestry is the art of using a forest
without destroying it.”
He returned in 1890 to an America that was obsessed by a
“fury of development.” He wrote that America
“was fiercely intent on appropriating and exploiting
the riches of the richest of all continents -- grasping
with both hands, reaping what he had not sown, wasting what
he thought would last forever.”
Beginning with almost a billion acres of forests when the
first Europeans arrived, the government had already given
away much of the public lands. Over 150 million acres went
to encourage railroad construction; 4.5 million to promote
canal building; 3.5 million to build wagon roads; 2.25
million as an incentive for river improvement. Almost 100
million acres had gone to settlers under the Homestead Act
and millions more under the Timber and Stone Act.
By 1900, roughly half of those billion acres had been cut
and four-fifths of the remaining timberlands were in
private hands.
There was a genuine problem of industrial exploitation.
Over zealous harvesting to feed the wheels of growth and
expansion left a legacy and a scar upon America's forests.
Pinchot had many sound forest management ideas, which he
had demonstrated as the forester for the 3,500-acre
woodland on George Vanderbuilt's Biltmore Estate. Among his
beliefs was “the fundamental idea that forestry is the
perpetuation of forests by use.”
Pinchot's work at the Biltmore Estate led to his design of
a forestry course at Columbia University and a contract to
study the New Jersey forests. He also became involved in
New York politics, campaigning with the Citizens Union for
Social Reforms.
The beginnings of our national forests
In 1876 Franklin B. Hough was appointed as the first
national forestry agent under the Department of
Agriculture. Hough reported to Congress on the condition of
American forests. By 1881 a Division of Forestry was
established where Hough continued the study of America's
timber. In 1886 the Division of Forestry was given formal
recognition with Dr. Bernhard Fernow at the helm.
On March 3, 1891, the Forest Reserve Act authorized the
creation of “forest reserves.” In 1896 the
National Academy of Sciences appointed a seven-man National
Forest Commission. Presidents Harrison and Clevelend had
already proclaimed almost 20 million acres as forest
reserves but there was no plan or rules to govern their
use.
Charles Sargent chaired the commission and Pinchot became
it's secretary. 1897 began the management of the forest
reserves under the Organic Act.
In July 1898, Gifford Pinchot replaced Fernow as the
forester at the Division of Forestry which had grown to 60
employees.
As President Cleveland was about to leave office he issued
proclamations creating 13 new forest reserves, stirring
outrage and protest in the west. During the McKinley
administration Pinchot was appointed to chief forester and
traveled throughout the west to appease the fears of
westerners and spread his views of enlightened forest
policy.
Enlightened as it may have been there was no constitutional
basis for this federal policy. Pinchot also consulted with
the then New York Governor Theodore Roosevelt on the future
of the state's forests. This began a relationship which
developed further when Roosevelt became president.
Pinchot became very influential with President Roosevelt
and drafted the forestry section of his first state of the
union address in 1901. The Roosevelt-Pinchot forest policy
was formulated as “the fundamental idea of forestry is
the perpetuation of forests by use” and “the
forest reserves should be enlarged and set apart forever,
for the use and benefit of our people as a whole, and not
sacrificed to the shortsighted greed of a few.”
Pinchot began to dedicate himself to a problem. The
Interior Department controlled the forest reserves, but had
no foresters, while the Bureau of Forestry in the
Agriculture Department had foresters, but no forests. A
bill calling for such a transfer was defeated in Congress
in 1902, so Pinchot conceived the American Forest Congress,
a consorttium of various special interests.
He later admitted that it was “planned, organized and
conducted” by his bureau to transfer power and forests
to his agency.
In 1905 the Transfer Act passed into law, converting the
Bureau of Forestry into the Forest Service and the forest
reserves into national forests administered by the new
Forest Service. Foresters and 86 million acres of national
forests were combined in the new agency with Pinchot at the
helm.
The new federal timber barons: Theft by proclamation
Pinchot became a target of western politicians who accused
him of “Pinchotism.” One Colorado legislator said
this enormous territory of forest reserves is an empire
within a republic, ruled by a despot with as much power as
the Czar of Russia.”
The Roosevelt-Pinchot forest program met fierce opposition
in Idaho. 20,336,000 of Idaho's 53,945,000 acres had been
designated as 17 national forests by 1907. Pinchot's plan
was taken as a grievous affront to state sovereignty.
Oregon's Senator Fulton introduced an amendment to the 1907
Agricultural Appropriations Bill which would deprive the
president of any authority to create more national forests
in many of the western states.
The bill passed and needed the president's signature by
March 4 to become law. Without his signature, the
Agriculture Department and the Forest Service would have no
funds to operate. Roosevelt and Pinchot responded by
preparing and issuing 32 more proclamations creating and
expanding national forests by March 2. These doubled the
area of the Forest Service to approximately 150 million
acres.
The president then signed the Agriculture Bill which funded
the Forest Service and ended, at least temporarily, the
presidential power to proclaim new national forests.
The forest reserves were created by issuing
“Presidential Proclamations.” These executive
edicts were not legislated or approved by the Congress. The
Legislature of Idaho gave no consent for the federal
government to purchase these forest lands and federal
government did not actually purchase these “forest
reserves.” The Forest Service only
“administers” the forest reserves. This pretended
ownership by administration continues to this day.
Have it both ways?
On the one hand, the federal government only claims to
“administer” these lands, not own them, until, on
the other hand, they want to prosecute people
“criminally” for violating Forest Service
regulations. As a matter of established law, “federal
criminal jurisdiction” only exists on property owned
by the federal government when the state has ceded its
jurisdiction to the federal government, as the following
courts have ruled:
”A state retains complete and exclusive political
jurisdiction over land purchased by the United States
without the consent of the state or where political
jurisdiction has not been otherwise ceded to the United
States by the state.” (US v. San Francisco Bridge Co.,
D.C.Cal. 1898, 88 F. 891).
”When United States acquires property by purchase,
consent of state must be secured before United States has
complete jurisdiction over property.” (Hayes v. US,
C.A.Kan. 1966, 367 F.2d 216).
”Constitution prescribes the only mode by which the
United States can acquire land as a sovereign power, and,
therefore, they hold only as an individual when they obtain
it in any other manner.” (US v. Penn, C.C.Va. 1880, 48
F. 669).
”When land or other property is acquired by United
States by purchase or condemnation without consent of state
legislature, it would not be entitled to exercise exclusive
jurisdiction over property, as state has retained right to
exercise its general police powers.” (McEachin v. US,
D.C.App. 1981, 432 A.2d 1212).
Those who have been unfortunate enough to receive a
citation for violating some federal forest regulation will
find the federal government claims an authority to
prosecute them under the “Property Clause” of the
federal Constitution (Article Four, Section 3, Clause 2).
The federal government must own the property to invoke the
Property Clause, but when a defendant tries to challenge
the federal court's criminal jurisdiction by demanding
proof of federal ownership of the property and cession of
jurisdiction by the state, the federal prosecutor cannot
prove either.
This, however, does not stop the prosecution of the
defendant, as my own experience has shown.
The Big Lie of the federal ownership of forest lands within
a state must be protected. Anyone who attempts to challenge
federal criminal jurisdiction based on the constitutionally
impossible nature of federal forest land ownership will
find out what power is all about. Federal prosecutors will
hide the constitutional facts of life while federal judges
ignore them. Truth and justice will be buried to protect
the Big Lie. Absolute power corrupts absolutely. Federal
forest lands exist because the federal powers that be
maintain their control by preventing the exposure of the
constitutional facts of life. The truth is there cannot be
any National Forest lands in Idaho. Truth was one of the
casualties in the so-called Civil War. That war was more
about states' rights than slavery, and the federal
government has treated the states as mere territories ever
since.
Imagine a solution
No, I am not a hegelian opportunist seeking a job for life
as the administrator of yet another “solution,”
but imagine, for a moment, some possibilities. If the
constitutional facts of life were to be recognized we
could begin an orderly transfer of the federally held lands
back to the state. By also recognizing the other
constitutional facts of life that limit the size and scope
of state government we could shrink down state government
to an honest size. Once state government became affordable
again we could eliminate property taxes. And maybe the
sales tax. Perhaps even income taxes. How? By the proceeds
from the vast resources which properly belong to Idaho.
Two and a half million acres of state endowment lands fund
much of our state schools. The over 34 million acres of the
now federally-held public lands might also fund the rest of
the state and county governments. Instead of property
taxes, a portion of the proceeds from timber, minerals,
grazing, recreation and other fruits of the land could go
into a general fund which would be returned to the counties
on a per capita basis. Another portion could fund our state
government. Right now the Forest Service pays 25 percent of
the stumpage from timber sales to the counties as payment
in lieu of taxes. What kind of prosperity would result if
all of the stumpage went to an Idaho Public Lands Fund
instead?
Many Idahoans are frustrated by the dysfunctional mandates
of current Forest Service management policies. The Forest
Service is congressionally constipated with contradictory
mandates which have given the agency's holdings the less
than affectionate title, “the land of no use.”
The original battle cry of the Roosevelt-Pinchot forest
policy was “the fundamental idea of forestry is the
perpetuation of forests by use.” Why not adopt such a
policy under state management? This wouldn't mean and end
to our valued wilderness areas. Under an orderly transfer
of ownership, the remote and pristine wonders of our
state's natural heritage could become state wilderness
areas. The state could adopt wilderness policies promoting
recreational use and management by nature, while allowing
scientific, common sense, active management of the more
accessible and productive public resources.
Through the inaction of the current Forest Service, much of
the already roaded public lands are being ravaged by
disease and insect infestations. A tinderbox condition has
developed from a century of fire suppression preventing
nature's method of thinning the forest. In the absence of
fire, failure to mechanically thin nature's abundance
leaves our forests ripe for catastrophic fires, as forest
diseases and insects generate the fuel.
Many private landowners and loggers who care about the
forest have demonstrated what can be done by working with
nature to “perpetuate the forests by use.” Trees
killed by insects and disease can be turned into valuable
timber if they are harvested timely. Often this results in
better forest health, while directing man's consumptive
interests to the bounty of nature's gifts.
The state could develop a stewardship program where
Idahoans could lease or otherwise contract for long term,
low impact, resource management of these state public
lands. More than just a timber sale, stewardship could
involve developing an environmentally sound road system;
protection of sensitive areas; wild life habitat
enhancement; active management of the forest for long term
productivity, as well as developing recreational
opportunities for the public on each “steward's”
project area. Our many skilled foresters could be employed,
working with the resource stewards as they manage the
public lands. This could finally achieve Gifford Pinchot's
original idea for the forest reserves: “to help the
small man making a living, rather than to help the big man
to make a profit.”
Time for Action?
Idaho has lost more than the 52,712 square miles of the Big
Lie. How much has this great timber fraud taken from our
state by the failure to “use the forest without
destroying it.” Mill closures have plagued the timber
industry while disease and insects have a feast. Many of
those in the business of making our natural resources
productive have a dim future while our public lands are
being closed to the public, and their potential is idled.
A few years ago the Idaho legislature passed a Tenth
Amendment Resolution, declaring that the federal government
must live within the bounds of the Constitution.
Was this just more fuzzy wuzzy, feel good legislation, or
did our legislators mean it? Will our state officials act
now to end the Big Lie? Can we begin an orderly transfer of
what properly is state public land? It may take a state
Constitutional Amendment to give the mandate for the
management of these lands. The State Department of Lands
would have to be expanded, or another agency created, to
fulfill the new mandate, but government usually doesn't
mind getting larger and attaching itself to another revenue
stream.
Many Idahoans have the common sense, the science and
generations of experience to intelligently manage our
public resources. If we demand action, and an end to the
Big Lie, perhaps our state leaders will follow.
***
Author Hari Heath is a writer and researcher who once thought
he could find truth and justice in the federal court system.
Having disproved that theory, he now seeks to avoid
further contact with the feds.
Hari got into trouble for asking a Forest Service officer
questions about his authority and jurisdiction. That resulted
in some trumped up charges about "obstruction." He could have
paid a $300 fine and been done with it, but since he still
wanted answers to his questions he went to court.
Since peasants are not supposed to bother royalty with
impertinent questions (like asking where the Emperor left his
clothes) the federal judge tried to make an example of Hari
with a sentence of jail time, probation and deprivation of
fundamental rights such as his right to protect himself.
That was more than Hari was willing to sacrifice to the beast,
and so he departed from his family and now lives the life of a
fugitive.
You can read the details of his story here:
http://proliberty.com/observer/harisown.htm
Friends, freedom has a price. The only questions are who will
pay and when. Winston Churchill put it this way:
If you will not fight for right when you can easily win without
blood shed; if you will not fight when your victory is sure and
not too costly; you may come to the moment when you will have
to fight with all the odds against you and only a precarious
chance of survival. There may even be a worse case. You may
have to fight when there is no hope of victory, because it is
better to perish than to live as slaves. -- Winston Churchill
Will you pay the price for freedom? Or would you rather let
that debt accumulate and leave it for your children or
grandchildren to contend with?
Hari has a rare gift -- the ability to reduce a seemingly
complex issue to its bare essentials and present it with
crystal clarity. For the past several years Hari has shared
that gift with readers of The Idaho Observer and other
publications.
Now its time for you to share.
Hari's wife and children have been deprived of husband, father
and provider. There's no way to compensate them for that
loss, but we can at least make sure their physical needs are
provided for. With winter coming they need to be stocking food
and firewood.
Please search your heart and your wallet for an appropriate
contribution and mail it to:
The Idaho Observer
P.O. Box 457
Spirit Lake, Idaho 83869
Mark "In Trust for the Heath Family" on your check or note so
the aid is properly directed.
Thank you.
WHAT IT ALL LOOKS LIKE ON A MAP:
