Home inFocus Government and Government Overreach (Fall 2013) 10th Amendment Solutions

10th Amendment Solutions

Rob Bishop Fall 2013

How a government deals with property is the window to the soul of that government. Property may be a tangible item and liberty may be an intangible value, but the preservation of both is the historic purpose of American government. The preservation of one is the precondition to the preservation of the other. Sir Henry Maine wrote, “Nobody is at liberty to attack…property and to say at the same time that he values civilization. The history of the two cannot be disentangled.” The proper use of property raises mankind from political slavery.

The Constitution allows the federal government to own property specifically for “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings…” (Art. I Sec. 8) Today, however, the federal government owns one-third of all the land in the United States. That is one hell of a needful building.

The concept of the federal government as an absentee landlord for massive amounts of America was never the intention of those who founded this country. It just sort of happened. While the attitude toward private property never “officially” waivered, implementation of policy did. The policy toward “land” in America was never static. Colonial land was first used to encourage immigration; then the sale of territorial lands was used as a source of federal revenue; later territorial lands were used to promote homesteading. Most of these efforts were futile because the lawmakers in Washington passed laws for use of lands thousands of miles away from their understanding. During the Progressive Era, the paradigm again shifted, and the federal government decided just to keep the land. This was not about preservation of land. There was no evidence of private or state mismanagement of land. There was no well-conceived plan for the land. They just kept it. The apparent concept was the West needed to be protected from itself, and only those in Washington had the proper national vision to make decisions. If a conflict occurred between Washington’s views and local government’s views, obviously Washington’s views were superior.

This concept is as fallacious today as it was then.

Federal land is currently found disproportionately in the West. Fifty-two percent of the thirteen western states are federally owned; only 4 percent of the other 33 states is part of the federal estate. There are national parks in 49 of the 50 states, so most people in the East think of federal land as national parks, but only 13 percent of public land is actually national parks. The rest is land few would consider necessary to the functions of federal government. Conflict develops because those closest to the land have significantly less input into the land’s use and preservation. Robert Nelson in Public Lands and Private Rights stated, “The people of the West thus were pawns to the romantic imagination of the East.”

State Solutions

The Subcommittee on Public Lands and Environmental Regulation, which I chair, held recent hearings where expert witnesses illustrated how federal agencies are unable or unwilling to adopt sound policies for the conservation, recreation, and economic use of federal land. Whether from fear of lawsuits, “analysis paralysis,” or political ideology, federal land managing agencies are so frozen by fear of human use that devastating wildfires, insect infestation, invasive species epidemics and closing of large areas to recreational access and resource utilization are now the norm.

State lands, in contrast, are more often successful in providing the full range of benefits our resource rich lands can provide. Our goal should be to expand opportunities for outdoor recreation, economic growth and conservation, but under federal management, these opportunities shrink. Governor Herbert of Utah addressed the issue in an appearance before the Subcommittee: “No one is more committed to the most effective use of limited resources for the best possible outcome, for both our lands and our citizens, than those who will directly live with the consequences of those decisions.” Western states have demonstrated superior management practices.

Forest Health

In recent congressional hearings, Natural Resources Committee Chairman Doc Hastings pointed out that in the State of Washington following last year’s wildfires that consumed 68,000 acres of state land, their Department of Natural Resources harvested 10 billion board feet of salvage timber. In contrast, on the 300,000 acres of National Forest land that burned in that state there was no salvage operation, no active forest restoration and no timber jobs created.

A Washington state forestry expert testified, “In 2011, state trust lands yielded a harvest of 560 million board feet of timber which generated $220,000,000 in revenue from 2.1 million acres of land managed on behalf of the trusts. By contrast, National Forest lands in Washington yielded 129 million board feet generating revenue of only $638,000 on 9.3 million acres or one fifth of what the state produced on a quarter of the land base.”

Other public land states tell the same story. Governor Otter of Idaho testified about forestry practices in his state:

The federal government manages 20.4 million acres in Idaho; Idaho manages and owns just less than 1.3 million acres of forest land. Even though the Forest Service is the largest forest land manager in Idaho, the State and private forests provide over 90 percent of the wood milled in Idaho. Timber harvests on federal lands in Idaho are the lowest they have been since 1952, and less than 1 percent of national forests are logged nationwide each year. In 2012 the Forest Service harvested an estimated 100 mbf of timber in Idaho, while the State of Idaho harvested 356 mbf and private forest owners harvested 634 mbf.

Chart 1 illustrates the stark comparison between state and federal management.

It’s not just jobs threatened by federal mismanagement. The forests themselves are being harmed. During the fire season we see the consequences of the failure to manage federal forests on a sound, sustainable basis. The lack of appropriate federal management has created unhealthy forests, tinderbox fuel build-up and overcrowded weakened trees that are unnaturally vulnerable to disease, insects and fire. The conditions are different on state lands.


Opportunities for outdoor recreation on federal lands are also often stifled for ideological reasons. Although some activist groups and allied federal officials want to be associated in the public mind with outdoor recreation, in reality “recreation” to them means only the limited activities allowed in designated wilderness areas. The fact is that the non-wilderness component of outdoor recreation enjoys a far greater level of public participation and makes a greater contribution to the local economy. For some federal land managers public enjoyment of even those activities that are not prohibited in wilderness areas are strictly secondary to their vision of a landscape where humans are not allowed.

Recently, in both Yellowstone and Grand Teton National Parks, kayakers and canoeists were told that they would not be allowed in large parts of the Snake River headwaters that had been designated as Wild and Scenic. It did not matter that the legislation that designated the river as Wild and Scenic specifically mentioned recreation as a purpose of the designation.

A similar hostility to public recreational use of public land was displayed in Washington state where a National Forest supervisor withdrew a permit that allowed a pack and guide service to operate in a wilderness area. The supervisor said she was not comfortable having a commercial operation in “her” wilderness area. Similar changes are proposed in Yosemite National Park where the managers want to close family-friendly facilities. The most sought after family campsites are along the river; those are the ones to be closed. If one enjoys riding trails on horseback, bring a horse because the rental facility will be closed. In Cape Hatteras National Seashore in North Carolina, the most popular sections are closed to visitors during peak season due to a “sue and settle” arrangement between an environmental group and the Park Service. The restrictions go far beyond what the U.S. Fish and Wildlife Service said was needed to protect wildlife. A couple of years ago a BLM official tried to ban firearms in a remote desert area because he imagined the gunshot sounds of target practice would frighten urban visitors.

Small businesses such as outfitters, guide services, and canoe rental concessions, whose services are essential for public enjoyment of our parks, are increasingly subject to unreasonable permit conditions such as extravagant insurance policies that are unaffordable by a small, family business. Many will be forced out of business.

We don’t see this growing wave of restrictions in state run facilities. In part this is due to the labyrinth of federal laws, regulations and the Washington mind-set that drive out creative innovation and adaptation. It is also because locally determined decisions tend toward the practical, and local stakeholders and elected officials look for common sense solutions.

As a contrast, at the Sand Flats Recreation Area in Utah, the federal Bureau of Land Management admitted it had neither the resources, man-power, nor desire to regulate a popular recreation area. After a near riot experience, the federal government finally decided to contract the management of the area to the local county. Since then the area has been a favorite destination site for outdoor recreation in Utah. It has been profitably managed as well. This pattern should be replicated.

The advantages of state solutions to conservation problems are apparent in the current efforts to conserve the sage grouse, a species that lives in the vast sagebrush habitat found in eleven states in the West. The states have taken the lead and crafted highly effective, site-specific protections tailored to the bird’s local habitat needs. The states have practical solutions to this problem. It remains to be seen whether the federal government will allow these efforts to succeed or will instead impose a federal takeover of these conservation efforts. After all, Washington’s views are by definition, “superior.”


Federal public lands have almost unlimited space for outdoor recreation while also providing abundant potential for food, fiber, mineral and wildlife habitat, if these lands were managed as wisely as state lands. Applying the principle of federalism to public lands would benefit the lands, our resources, and the American people.

Those who live near public lands tend to understand public land issues better than those who live in congested urban centers. If public land were distributed evenly around the country perhaps perceptions would be different.

Federalism need not be a partisan or ideological issue. Federalism doesn’t necessarily mean the end of programs; it means the end of inefficient government programs that do not meet the needs of people. Federalism means people have options and the right to choose the direction of government services. There are sections in this country where the people may want a robust public sector. Fine! Federalism allows the growth of those local governments without bothering other areas unimpressed with a robust public sector. In other words, people should choose, even if that choice is wrong.

The fundamental truth is that Federalism gives more citizens more of what they want more of the time.

Rep. Rob Bishop represents the First District of Utah.