The Public Domain

Our public domain was born out of an altruistic act of the thirteen American colonies after they won their war with Great Britain. The Kings of England had made grants of land to their higher and lesser nobility for the purposes of settling the new lands in North America. Each of the colonies had a royal charter and each came to have a royal governor. Land ownership in the colonies was patterned after land ownership in England since English laws applied. There were lots of crown lands in the new world; these were what the king was giving away. The lands, claimed under the terms of the Donation of Constantine, under which a Christian prince could extend sovereignty over the lands of non-Christian princes, were his to dispose of. When the king gave it to another person, it became his/her land, subject to confiscation by the king for various reasons. There were crown lands and private lands but there were no "public lands."

The British King had claims to the west of each of the colonies. The grant the King gave Lord Fairfax for Virginia, for instance, extended from Atlantic to Pacific Ocean, even though there was little or any knowledge of the land to the west. After the war with Great Britain the crown lands fell to the colonies. They could have asserted their rights to this western land but in stead ceded it to the newly formed United States of America.

What then were crown (sovereign) lands became the sovereign lands of the United States of America, held in common for the people of the respective States under the Articles of the Confederacy. When we adopted the Constitution we changed from a confederacy of independently sovereign states to a Federal Republic. Under the terms of the Constitution, we the people became the sovereign for the general government as well as for the government of the States in which we lived. The crown lands of the King (sovereign) became the sovereign lands of the citizens sovereign. The public (sovereign) lands, in essence, were transformed from the lands of the King as sovereign, to We the People as sovereign--remaining sovereign lands all the while. Additions to the public (sovereign) lands were made by purchase and by conquest. They are managed by the Congress under the terms of the Constitution, (Property Clause). The several States have residual lands that were not conveyed to the general government and they are the lands of the sovereigns of the States.

New States were formed from the public domain by first creating Territories and then creating States from the Territories. In each case the Congress decided what lands were to be conveyed to the State for its purposes and what lands within the newly created State were to remain part of the public domain. No State was admitted to the Union without consenting to this arrangement, the Sagebrush Rebellion, notwithstanding.

An Equal Share of the Common Wealth

The common wealth of the people of the United States consists of the public domain in all its aspects and all the assets associated with it. The public domain was acquired by acts of the nation acting on behalf of all its citizens. Whether acquired by purchase or by acts of conquest, the public domain represents real property and tangible as sets held in common by all the people of the United States. The United States, in acting on behalf of the people as the trustee for the public domain, is obligated to exercise the highest fiduciary responsibility in managing the trust of the public domain on behalf of all its citizens now and for future generations. Alienation (privatization) of the public domain deprives this and future generations of their inheritance and heritage.

The public lands (sovereign lands) form the foundation of the common wealth of the nation.

The Public Domain

The public domain includes but is not limited to the following:

• 330 million acres of land, principally in Western United States.

• The Outer Continental Shelf with all its oil and gas.

• Navigable Rivers, Water and Power.

• Harvestable timber on the public lands.

• Grazing rights.

• Mineral rights.

• The atmosphere (air craft use and air reduction) and the air waves (radio and television).

• Areas covered under the Laws of the Sea and Space.

Taken together these assets com prise the public domain--the domain of the sovereign, i.e., Us the People.

Intellectual property, patents and copyrights, that lapse into the public domain because of the expiration of their terms.

A Lot of Money

At the present time no fees are collected for the use of air space or the use of air waves. There have been proposals to auction radio frequencies to the highest bidder, thereby, alienating this public property for all time. This is a crime against the sovereign and should be resisted at all costs.

The income from the public domain varies from 2 to 8 billion dollars a year...every year—year-in-and year-out. At present, the income from the public domain is considered part of the general revenues. It is spent for purposes which clearly should be covered by taxes. In so using these funds, the Congress is depriving all citizens of the United States of one of their unalienable rights, i.e., an equal share of the common wealth.

Converting Non-renewable Wealth to Renewable Wealth

The income from the public domain, in large part comes from non-renewable sources (oil and gas) and, therefore, should be dedicated to renewable resources, namely trust funds, and the income from these should be dedicated to the common benefit of the citizens of this and future generations of the United States.

American Heritage Trust

There is precedent for this action currently pending in the Congress. Representative Morris Udall, now retired, introduced a bill in the House with over 130 sponsors to establish the American Heritage Trust. A similar bill was introduced in the Senate by Senator Chaffee. The nominal amount of funding specified from the royalties from off-shore oil leasing is $1 billion. This is a good number for starters but should be increased substantially, according to the revenues from the public domain. Interest from the trust, in the case of the Udall-Chaffee bills, would be appropriated for outdoor recreation and other purposes. Other trust funds for other purposes could be proposed in the course of time.

Sharing Cultural Riches

An equal share of the commonwealth is an unalienable right. There is no better way this right can be expressed than by providing a culturally enriched environment for the common benefit of the people of the United States. By acting together we can demonstrate the wisdom of protecting and conserving the public domain and using the income therefrom to provide continuing natural and cultural enrichment of the nation.

We Can Seek No Less a Blessing

We the People are the sovereign. The commonwealth in the form of the public domain is our patrimony and the heritage of our children. We simply must insist that the public domain be protected and conserved and that cultural amenities flow from this source in perpetuity. We can seek no less a blessing for ourselves and our posterity.

The Constitution gives the Congress the obligation to manage the public domain. It is the obligation of the Congress to see that the public domain is managed and used for the common benefit of the people of the United States for this and future generations and that it is not managed or controlled for the exclusive use of any state, region, corporation, or individual.

Management of the Public Lands in the Public Domain

The guiding principles for the management of the public lands in the public should be:

• All the people of the United States benefit.

• The public land, air, water, and dollar resources are to be treated like capital assets.

• The public land, air, water, and dollar resources should encompass a variety of uses that, acknowledgably, may change from time to time as the values of our nation and its citizens change.

• Natural resource values should be conserved and preserved, taking into account their renewability; these should not be consumptively destroyed.

• Consumption of non-renewable resources should be compensated for by converting the income from them to renewable resource trust funds.

The great bulk of the national public lands are administered by the Bureau of Land Management (BLM) of the Department of the Interior. The Federal Land Planning and Management Act of 1976 is the organic act of the BLM (FLPMA). FLPMA closed the public domain and set the rules for the management of the land.

Organic Act 1976

The purposes clause of the organic act of the Bureau of Land Management deserves to be quoted extensively. The following is the Declaration of Policy of the Federal Land Planning and Management Act of 1976:

"Sec. 102. (a) The Congress declares that it is the policy of the United States that--

(1) the public lands be retained in Federal ownership unless, as a result of the land use planning procedure provided for in this Act, it is determined that disposal of a particular parcel will serve the national interest;

(2) the national interest will be best realized if the public lands and their resources are periodically and systematically inventoried and their present and future use is projected through a land use planning process coordinated with other Federal and State planning efforts;

(3) public lands not previously designated for any specific use and all existing classifications of public lands that were effected by executive action or statute before the date of enactment of this Act be reviewed in accordance with the provisions of this Act;

(4) the Congress exercise its constitutional authority to withdraw or otherwise designate or dedicate Federal lands for specified purposes and that Congress delineate the extent to which the Executive may withdraw lands without legislative action;

(5) in administering public land statues and exercising discretionary authority granted by them, the Secretary (of the Interior) be required to establish comprehensive rules and regulations after considering the views of the general public, and to structure adjudication procedures to assure adequate third party participation, objective administrative review of initial decisions, and expeditious decisionmaking;

(6) judicial review of public land adjudication decisions be provided by law;

(7) goals and objectives be established by law as guidelines for public land use planning, and that management be on the basis of multiple use and sustained yield unless otherwise specified by law;

(8) the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use;

(9) the United States receive fair market value of the use of the public lands and their resources unless otherwise provided for by statute;

(10) uniform procedures for any disposal of public land, acquisition of non-Federal land for public purposes, and the exchange of such lands be established by statute, requiring each disposal, acquisition, and exchange to be consistent with the prescribed mission of the department or agency involved, and reserving to the Congress review of disposals in excess of a specified acreage;

(11) regulations and plans for protection of public land areas of critical environmental concern be promptly developed;

(12) the public lands be managed in a manner which recognizes the Nation's need for domestic sources of minerals, food, timber, and fiber from the public lands including implementation of the Mining and Minerals Policy Act of 1970 (84 Stat. 1876, 30 U.S.C. 21a) as it pertains to the public lands; and

(13) the Federal Government should, on a basis equitable to both Federal and local taxpayer, provide for payments to compensate States and local governments for burdens created as a result of the immunity of the Federal lands from State and local taxation.

(b) The policies of this Act shall become effective only as specific statutory for their implementation is enacted by the Act or by subsequent legislation and shall then be construed as supplemental to and not in derogation of the purposes for which public lands are administered under other provisions of law."

Managing the trust of the public domain consists of two parts. One is to manage properly the physical assets themselves, and the second is to manage properly the income generated by these assets. Good land management is based upon site-specific management practice. One recipe will not do for all the land and even one or a few multiple use plans will not fill the bill. Each area under management must have its own management plan that spells out the authority for its management, the objectives that the management hopes to accomplish, and the method for accomplishing those objectives. The management must first be based upon sound ecological principle that will assure the long term health and well being of the resource if it is renewable, and that will accurately assess the damage and loss if the cost of use is irretrievable loss.

All, for profit, use, of the public domain should be with payment, as required by the Act. This will require some change in the Mining Act of 1872, which currently encourages prospecting and the perfecting of claims without entry fees or the payment of royalties on profitable claims. Many claims are perfected for the sole purpose of obtaining the land, the claim having been worked only to meet the requirement of the law. The land from the public domain should revert to the public domain at the conclusion of any mining operation.

Resources utilization from the public domain should be in the national interest and gauged against the national need for the commodity. Range land used for the production of beef, for instance, should not be allocated from the public domain simply because it is cheaper and more convenient than from private land. The public domain should not be used to compete unfairly with the private sector simply to profit a few local ranchers. Production of livestock, beef, or sheep on the public domain should meet some national requirement for the commodity. At present about 10% of the beef production in the United States originates on the public domain.

Timber production from the public domain has received widespread attention in recent times. The Forest Service has been severely criticized for selling timber at prices that were less than the cost to put in the road. This is giving away the resource with cost. Again the use of the resource has to be put on some national scale, since this is a national asset.

The Pacific Northwest currently supplies a great deal of timber for the market. However, much of the nation's need for timber is being met by the Southeast forests; the role of the Northwest forests, particularly the old stand forests, will become questionable. The forest cutting that is jeopardizing the spotted owl, for instance, is being exported to Japan at a net loss of jobs (to Japan) required to finish the logs and then convert them to manufactures. We are a Japanese timber colony, and I can't see playing that role being in the national interest. Much of our timber practice produces timber plantations. While these may be successful in producing wood they produce little else. If we favored a more enlightened forestry practice we would establish forests that would not only produce wood but would produce much more of it and sustain many more species at the same time.

The utilization of timber, water, and grazing resources on the public domain should not be social welfare by another name. That is likely to happen if the local needs are permitted to be the driving force in devising management plans for the public domain. The local needs are important and should be considered, but resource values should not be irrevocably sacrificed to meet such needs, as is many times the case. In the long run, the local need for economic sustenance will be met by some or another form of recreation that appeals to the national and international traveler. To that purpose outdoor recreation should be extensively developed on the public lands in the public domain in conjunction with the rest of the uses in the multiple use spectrum.

Not all citizens of the United States will benefit from the public lands by living on or near them, or by mining, or cutting timber, or drilling oil, but all citizens could benefit from trust funds established from the income from the public domain. If the income from the public domain, some 2 to 8 billion dollars a year, were placed in trusts for the common benefit of the people of the United States, the people as a whole, the citizens sovereign in general, could benefit greatly from the public domain, right where they live.

A Nation of Trusts

A trust for the performing arts in the United States would be of im measurable benefit to the arts. Practically everyone associated with the theater laments the facts that ticket sales cannot pay for theater, or opera, or the symphony, and many schemes have been advanced for Federal support for the arts. Of course, the Endowment for the Arts does exactly that, but since it is an item in the general budget it must compete with all other chores of government for support. A $30 or $40 billion trust fund, administered like the Smithsonian Institution, (a private trust owned by the Federal government, i.e., the people), for the benefit of the arts would fill the bill.

In We the People Vol 5 No. 2, February 1991, I described a higher education trust fund that would be another land grant except this time the grant would be money in the form of income from the public domain: a trust fund for education in the amount of $50 billion dollars to serve all the present land grant schools and maybe to start some more if we think we need them. This fund could also supply support for the role of the university as the mother institution to support our public elementary and secondary schools. It can happen. Remember the money comes every year--year in and year out.

The American Heritage Trust could support outdoor recreation for the whole nation. There could be grants made to the fifty States as well as Federal agencies doing that work. A trust fund of $30 billion dollars would support outdoor recreation so that all Americans could benefit from outdoor recreation right where they live.

An Enormous Constituency

For the American Heritage Trust and other trusts to be successful, massive support from the citizenry will be required. The general public must become the advocate through an educational program aimed at informing citizens of their rights in the public domain and the commonwealth. The general public must be organized to protect and enhance the public domain so that the wonders and bounty of nature and the largess of cultural amenities can be shared with all the citizens of the United States, not only of this but of future generations. Ultimately the public domain must become the public trust.

...Ted Sudia...

© Copyright 1991
Institute for domestic Tranquility