Expert’s take: Land seizure and the Constitution

A number of complexities surround the government vs. Cliven Bundy standoff case in Nevada. Some say the feds acted legally, others that they are infringing upon private property and Constitutional rights. Either way, the situation stimulated a national discussion: What are the limits of the federal government and its agencies?

Byron Schlomach, Ph.D., Director of the Center for Economic Prosperity at the Goldwater Institute, sets us straight:

In reference to the Bundy case and the new report that the Bureau of Land Management is looking to seize about 90,000 acres of land to be made public in Texas, what exactly is the purpose of the BLM, and what are its limits? How much power does the BLM have, and what can they do with it?

The Bureau of Land Management is the federal government’s property manager. As such, it asserts the federal government’s ownership rights. The BLM can do anything with federal land that any private landowner can do with his or her own land, including keeping other people off of that land. The problem is that the land the BLM owns is “everybody’s” since it is “publicly owned.” This means we end up fighting over the best way to use the land and the losers in the hurly-burly of political infighting have lately been past winners, so they feel particularly wronged. The political process, which is very frustrating, sometimes corrupt, and which always produces exultant winners and embittered losers who feel their rights have been ignored or confiscated, does not necessarily lead to unity and good feelings.

In the Bundy situation, political wrangling by environmentalists has led the BLM to end longstanding leases with people like cattle ranchers. Like any landlord, the federal government has the right not to renew leases when they expire, to collect agreed lease payments, and to evict someone who refuses to pay rent. Most landlords, though, rent to those who best take care of the property and who pay the highest rents. The federal government can afford not to behave so rationally if a majority or a vocal majority wishes it so. This is the problem so many are having with current BLM policy. The BLM is arguably not making best use of federal lands because of the political machinations of environmentalists.

The Texas situation is more insidious. The BLM has always had the right to assert federal ownership and works to determine property boundaries. However, in the Texas case, the BLM essentially ignored the federal government’s potential claims for a very long time. Private land use and ownership boundaries have long since been established. For the BLM to come back now and confiscate land would be immoral. Instead, the property rights of those who put property to good use should be recognized. The government and even George Washington lost land to “squatters” who, finding no identifiable boundary markers, appropriated land for themselves. Courts then determined that ownership went to those who did something with the property, not to those who did nothing with it, even if their claim was legitimate on paper.

What rights do citizens have against the BLM? We have all heard stories of the government seizing property from private citizens, paying them a fair price for it, but basically saying, ‘we want to build a highway through your farm, you have 90 days to vacate,’ or something to that effect. Is this Constitutional? What would the Founders say?

The BLM is essentially the owner of federal property. Americans have no individual rights against it. If the landlord’s mind is made up to keep us off his property, we cannot and should not override him. Our only option is to attempt to peacefully change his mind. In the case of the BLM, the mind we have to change is the collective mind of Congress, which then has to change the laws that serve as the basis to change how federal lands have been historically administered.

The Fifth Amendment to the Constitution specifically addresses eminent domain by saying that private property cannot be taken by the government unless owners are justly compensated. The Founders therefore recognized government’s right to take land, if necessary, for public use. The key is that private owners whose land is taken must be justly compensated. If the BLM decides to confiscate private land in Texas, claiming the land as historically the federal government’s, it should compensate the recognized private owners since the government effectively fooled people into thinking the land was available when the government failed to make its claims years ago. Mr. Bundy was never a private land owner over the lands in question so eminent domain isn’t relevant in his case.

Short of armed militias and Cliven Bundy-style standoffs, how can Americans defend themselves against the BLM and other powerful government institutions? 

The power of the vote and making an investment in educating people about the importance of private property are all we have short of violence. We MUST vote for government representatives at every level of government who truly understand the importance of the sanctity of private property. They must understand the advantages and incentives involved in having property owned by private individuals and how advantageous this is over so-called public ownership. There is really no such thing as public ownership because there will always be someone whose taxes help to support public lands but whose wishes for how it should be used will not be honored.

In other words, they are coerced into supporting others’ preferences. This is the height of tyranny. If the same people lose in our political system over and over again, then we do risk violence as the only way for them to believe their wishes will ever be honored. So-called democratic allocation of resources where the majority, or a very powerful and vocal minority, lord over everyone else, will lead to the disintegration of a civil society.

The bulk of so-called public property should be liquidated as soon as possible through sale by the government. This is exactly what happened prior to the Progressive Era and before the western states were admitted to the union. If policies followed since 1910 had been followed beginning in 1790, over half of the United States would be federally owned.

States should immediately be given the right to manage all lands within their borders since they are best able to make the local decisions necessary. States should be given the right to sell the lands as they deem appropriate with the states getting a nominal share of the proceeds, probably no higher than 10 percent, and the rest going to the federal government. Only in this way will the property currently owned by the federal government be put to its highest and best use.