The Property Clause and its Discontents: Lessons from the Malheur Refuge Occupation

Abstract

The occupation of the Malheur National Wildlife Refuge in Oregon by a group of armed militants led by Ammon Bundy during January 2016 spotlighted public land management to a largely oblivious American public. The militants’ month-long occupation was only the latest of several armed confrontations in recent years, one of them at Bundy’s father’s ranch in Nevada. What made the Malheur incident unusual were not only the length of the occupation but also the claims of the militants that their occupation was based on constitutional principles. We examine those claims in this article and find them meritless, wholly inconsistent with a long line of Supreme Court interpretations of the plenary federal power to manage federal public lands under the Property Clause. Although there is no justifiable legal case against federal ownership and management of public lands, the militants and their sympathizers may succeed in their efforts to divest federal land management in the political arena, epitomized by the 2016 Republican Party platform endorsing federal divestiture. Conveying federal lands to the states, as urged particularly by the state of Utah, however, would be a recipe for privatizing a common birthright of all Americans and inconsistent with moral, if not legal obligations to future generations.