The Myth of Public Lands

The Myth of Public Lands

Several years ago (back when we had cable) my wife and I noticed this show on the History Channel called “America’s Best Idea” about the creation and history of the National Parks in the U.S.

Now, knowing a little bit of the history of that, I sort of rolled my eyes at the precept that the impetus of the NPS was noble and good, or that it hasn’t had its severe failures.  And given my Federalist bent, I’m obviously of the opinion that States are usually better arbiters of “public” lands. So both principally and evidentially, one could say I’m confident that national parks were not “America’s Best Idea.” Nevertheless, many families including mine who adamantly support a curtailed role of the Federal Government in the “Interior” are more than willing to take advantage of national parks in their current state, owned and operated by the Federal Government.

Well…at least until last week.  Because what we have seen over the last week is that though the parks CAN be preserved by the Federal Government for our kids and grandkids, they can also be used for something else entirely: political, and supposedly popular political, leverage.

The current executive branch has gone out of its way to not only shut down open-air monuments and parks on federal lands (which often — especially in the case of monuments — cost more to shut down and block access to than to simply maintain), but has gone a step further: the administration has decided to make the life “as difficult as possible” by attempting to shut down ANY private park, or state park, or business, or even homes, which sit on federal land, simply because….well…they can.  This includes a colonial farm here in Northern Virginia which, though it’s technically on federal land, it requires zero federal money to maintain. It’s all operated by private money.  But the administration FORCED THEM to close. In the case of Mt Rushmore, the Park Service even made it harder to LOOK at the attraction by placing cones on the road outside the park where people often stop to take pictures from a distance.

This brings up the question:

What are “public” lands?

Historically if a place is “public,” it means that citizens are allowed to stand, park, camp, whatever is appropriate for that particular place, as long as the citizens agree to follow a set of rules — which vary by type of public place.  Roads, for instance, are considered “public roads”…as long as you follow traffic rules (and in the case of some right-of-way on street parking — parking rules), you can use these public roads. Town centers have public spaces…and then of course you have parks.  The small ones are simply for sitting or standing…you have to have a permit to invite a bunch of your friends for an event or civic event….but in those cases, you have very little recourse for closing access to other people.

Very often, the only cost of these “public” spaces is maintenance.  In the case of national parks with more extensive services (tours, campgrounds, etc), there is a little more, but often the main cost is maintaining the landscape, not restricting access, and the “extras” usually requires payment by the visitor.

The belief here is that the parks are OURS.  It belongs to us. The people. The public. The citizens. The role that government plays is one of SERVICE.  It is our RIGHT to access the land. It is held in trust for our use, and the government SERVES to protect that land for that use.

But what has gone on over the last week illustrates that this is a myth. This land is not OUR land at all.  It is not held in trust for us.  It is the government’s land. We are ALLOWED to access it at the government’s discretion, but if the government decides that we cannot, we cannot.  If a state government or private entity offers to foot the bill for a temporary period for maintenance, they are denied.  It is not our land, and we cannot access it.

Now as you go about your week think hard about what this means about what our federal government is about, what it has always been about, and why we need to start asking very serious questions about its role, and who ACTUALLY owns things.  If this rather casual “shutdown” of “public” lands tells us anything it is that a government with power to preserve and maintain something for the public’s benefit has the power to take that benefit away — immediately, without cause or recourse.  In a matter of days, because the current administration WANTED it, and only because the current administration wanted it, we have no national parks.  But the administration didn’t simply close all the gates to national parks (which would cost more money because people wouldn’t be paying to go to the parks — but I digress) it went the extra mile, beyond what it explicitly controls, and actively sought “the most dramatic type of action” at their disposal to inconvenience the public, based on its ownership of land, even if that ownership is tangential (as was the case of Mt. Vernon, where they tried to shut down a little parking lot near the park.)

What happens when they, for political purposes, decide that we no longer have access to their precious healthcare exchanges? Or college campuses (because they receive federal funding)…or our legal system? Or roads or bridges that are federally funded or maintained (already happening). Public services are public services. A government which can pick and choose which services it choose to provide, and seek to inconvenience the public — for its own political benefit — is nothing short of tyrannical.

(big hattip to Breitbart)

This post was written by
Mr. Porter is serving his third two-year term on the ACP Board and served as Chairman from 2009 to 2012. He currently heads up the party's Membership and State Development efforts. Mr. Porter is a small business owner in Northern Virginia. A native Louisianian who has decided on the Commonwealth of Virginia as his place to raise a family. He is active in his local business community, and a strong advocate for individual property rights, accountable and fiscally responsible government, and parental choice and reform in education. He lives in Leesburg with his wife of 11 years (and counting) and son.
  • Droidzilla

    I wonder; can one sue the President directly for his restriction of access to free travel through public land? Seems there’s a Constitutional issue there that could be mined.

    • Kennett

      No, there’s no Constitutional issue here; you can’t sue the Federal Government because it restricts your access to its land anymore than you can sue me because I restrict your access to my land with a “no trespassing” sign.

      The Federal Government holds title to those lands in National Parks, BLM, military installations, etc., as it bought and paid for them. If you go to the county courthouse where the land lies, you will see deeds with “US government” as the owner of record. At some time, the government bought the land from private individuals or corporations, or from the States, with the exception of land it already held title to, such as from the Louisiana Purchase (but which it originally bought from France).

      Your question stems from a misunderstanding of what “public land” means. It does not mean that every citizen of these united States has a part ownership in those lands. In the enabling legislation for the Federal Government to buy those lands, there were clauses that said in effect, “For the use of the public, or for the benefit of the public;” however, there were attendant clauses that said more or less, “Access and use by the public is dependent on the government’s discretion.”

      Now there are instances, mostly moribund, where “public” land is actually owned by the citizens. It occured in small towns that were incorporated, meaning each citizen of the town is part owner of the town’s land or other assets, according to the terms of the incorporation. In the case of the original Boston Commons, the citizens of Boston collectively owned that land, and each individual had the liberty to graze his cattle and sheep on it, as part owner. However, citizens of another town, say Concord, could not use the Boston Commons for grazing, as they were not stockholders of the Boston Corporation (or whatever it was called). In these cases, “public” meant not the general public, but the people of Boston, a selective category of “public.”

      Additionally, there are cases where the citizens are, at least in theory, owners in common of all the land and assets of a country, and have (again, in theory) free access and use of all the lands and assets, including all tools, structures, houses, industrial plants, resources, etc. within the country. Such an economic and political structure is called communism, where all the people are the government, and have communal (the root word of communism) ownership. In this case, the wheelbarrow in your neighbor’s shed is just as much yours as it is his, and you have the theoretical equal access to it. Of course, communism doesn’t work out this way in practice, as seen innumerable times in history.

      In a constitutional republic, such as ours, all the people are not the government, and we own nothing in common. The government is a discrete entity, a type of corporation, which all the people contract to perform certain discrete tasks – such as policing, defense, arbitration, and so forth. Just as you may employ a security firm to guard your property, its assets do not belong to you (the vehicles the guards drive, the guns they use, the building and land where it is headquartered, etc.), the Federal Government’s assets do not belong to you, and it has the freedom to restrict your access to those things.

      In sum, those “public” lands used as National Parks are owned lock, stock and barrel by the government, not the “public,” the alternative being creating a communist polity, where in theory the public can have unrestricted access to those lands.

      Libertarians advocate having the Federal (and State) governments sell off the “public” lands to private concerns who can manage the lands better, and without cost to the taxpayer – of course, they would charge usage fees, and (heaven forbid!) make a profit.

      • http://www.conservativeconscience.com/ wdporter

        Great response (sorry for my delay in seeing it). You’re absolutely correct. They are not “public” at all. I’ve always been a supporter of divesting the parks back to the States (which already have their own park systems), and let the States determine, hopefully, that a fiduciary trust would be superior to a government owned entity.

        As far as charging fees…NPS and State Park services already charge fees. Do you think they would be significantly more if privately owned (especially a non-profit trust)?

        • Kennett

          Some estimate that selling off all Federal land and the associated mineral rights excepting military reservations and government buildings would generate at least $3 trillion in immediate revenue. Of course, that is a small portion of the national debt, but freeing up that land would generate considerably more in economic productivity and the resultant taxes. It’s a win-win for all involved.

          There is an argument that in certain cases, the States would not have to pay for that land which is returned to them – for instance, Arizona was part of the Gadsden Purchase, and while it was a territory, legitimate property of the Federal Government. But upon becoming a State, a case can be made that the land should have been given to the State of Arizona gratis.

          As for the States being the grantor of fiduciary trusts of the land to private enterprise, I would hesitate to support that. The State would still be in control of the land, and as ever, politics and rent-seeking would determine who the trustees are, and the terms of the trust.

          Selling the land to non-profits would be little different than the current system of government ownership. The management of the land would be defined by the owner’s vision, not by the consumer. Without a profit motive, an owner could manage the land without regard for the desires of the visitors. I trust the free market of millions of consumers to determine the value of a scenic vista or monument over an idealist organization which is in effect, a single consumer with a monopoly.

          There is no way to predict in advance what visitor and usage fees would be for any particular site. Some may be less than current fees, some may be more; that’s the beauty of the free market – value is determined by the wants and needs of the aggregate consumer, not by the arbitrary needs of the government. A case in point – grazing fees on BLM land are not, as might be supposed, based on the actual value of the vegetation to the rancher, but by political horse-trading. A group of ranchers may be large contributors to a certain congressman who promises to insert an amendment into an agricultural bill to reduce grazing fees in his district, for instance; this certainly is not a rational basis for price determination.

          In the end, States are free to do with land they own according to the wishes of their people through their legislators. But for the Federal Government to own large tracts of land is decidedly unconstitutional, as Congress is empowered specifically by Article I, Section 8 to purchase and exert authority only over land which is needful for the military, and for legitimate government activities such as official buildings; not for building salmon stairs.