— Retired neurosurgeon Ben Carson, interview with the Las Vegas Review-Journal editorial board, Nov. 23, 2015
Carson, fresh off a briefing on public lands issues, told the Las Vegas Review-Journal editorial board that he would push for “returning” land from the federal government to states. The federal land transfer issue came into the national spotlight last year with the armed standoff between Nevada rancher Cliven Bundy and the Bureau of Land Management.
Land conservation and land transfer advocates are expecting this issue to emerge in the presidential campaign, particularly in the swing states Colorado and Nevada (where the next GOP debate will be held). As the Las Vegas Review-Journal noted, the federal government owns more than 80 percent of land in Nevada. Carson’s use of the word “returning” here reflects rhetoric used by some land transfer advocates and highlights a key policy issue at the heart of the debate — so we explored the facts underlying his answer.
First of all, Carson is way off on the acreage: The federal government does not own 2.4 billion acres of land. The actual land mass of the United States is about 2.3 billion acres, and the federal government owns and manages about 640 million acres, heavily concentrated in 11 continental Western states and Alaska. The Forest Service, National Park Service, Bureau of Land Management and Fish and Wildlife Service administer about 95 percent of those lands.
But we don’t play gotcha at The Fact Checker; Carson might have mixed up the U.S. land mass number with the acreage of land the government owns. His spokesman did not respond to our queries, but given his obvious mathematical error, we will focus on the more important policy issue.
The call to “return” land to states has been a states-rights argument for many decades.
In his 1998 book “Explorations in Environmental History,” environmental historian Samuel P. Hays called the notion of “returning” power to the states “a piece of sound-bite mythology rather than a vehicle for careful analysis.”
“The idea of ‘returning’ federal lands in the West to the states is a misnomer because those lands have never been owned by the states,” Hays wrote. “The political context of the issue is two quite different systems of land management with different objectives, one by the states and the other by the federal government.”
Here’s some historical context: The issue comes down to whether the “new Western” states should be given the same rights to federal land transfers as the original 13 states. The “new Western” land was acquired through various treaties and purchases beginning with the Louisiana Purchase in 1803 and ending with the purchase of Alaska in 1867, according to the Congressional Research Service‘s 2012 overview on federal land ownership.
In the mid- to late-1800s, Congress passed laws to encourage the settlement of the West by disposing federal lands, according to CRS. Land transfer advocates also note that in the 1800s, then-Western states (which are states in the current Midwest/South) contributed to these land transfers by pressuring Congress.
Through the Property Clause, the U.S. Constitution gives Congress power to own land. Under the equal footing doctrine, all new states are entitled to the same powers of state government that belonged to the original 13 states. And those states operated under a federal policy of transferring ownership of federal lands to private and state ownership.
Hence, those arguing for the federal government to “return” or for states to “take back” federal land believe that the Western states deserve the same statehood promise to transfer title to public lands as the 13 original states.
But in the context of federal land, the equal footing doctrine generally has not applied to federal land ownership, according to the CRS analysis. After many decades of debate over provisions in the equal footing doctrine and the Property Clause, Congress in 1976 passed a law declaring that “the remaining public domain lands generally would remain in federal ownership.” (For more legal and historical context, check out Punditfact’s fact-check on a related claim from 2014, and this 2007 CRS overview of the constitutional authority and history of federal land acquisition.)
This hasn’t stopped Western states’ efforts to push for the federal government to transfer land to the states. The 1976 law led to the beginning of the Sagebrush Rebellion, which peaked in the 1980s, an effort among state and local governments to force the federal government to divest itself of federal lands. But those efforts failed.
Fast-forward to 2014. The land transfer movement regained political attention via the Cliven Bundy standoff, which resulted after the BLM’s decades-long effort to push Bundy’s cattle off federally protected land.
With the backing of the Koch-backed fundraising network, the American Lands Council has reinvigorated the land transfer movement in nearly every Western state, the Los Angeles Times reported earlier this year. “Enabling acts” created most Western states from territories, and states had to concede control of the land in exchange for statehood. But advocates point to a clause in the enabling acts that they say entitles states to have land transferred from the federal government, the L.A. Times reported. The American Lands Council also argues that transferring land to states will allow for a more “thoughtful, more responsive and accountable stewardship” of the lands.
Carson’s campaign did not respond to requests for comment.
The Pinocchio Test
Carson said the United States owns 2.4 billion acres of land. He may have mixed up the total land mass of the United States (2.3 billion acres) with the amount of land the federal government owns and manages (640 million acres). He earns a Pinocchio for using the wrong figure.
But the bigger issue is that Carson repeats rhetoric that creates a misleading impression of how federal land ownership works. Words are important in this debate. While the the technical term is “dispose,” we agree that it sounds too much like jargon; a more acceptable phrasing would be “transfer.” In calling for “returning” federal lands to states, Carson used rhetoric that distorts the historical context and various legal interpretations that are at play. Federal land ownership and the state-federal clash over the issue is complex and nuanced, and Carson’s language blurs the underlying facts. That upped his rating to Two Pinocchios.
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