Musings on public lands

In 1775 the combined population of all 13 colonies of America was approximately 2,500,000. When formulating the Articles of Confederation to join forces to fight for Freedom, Liberty and Property. The Crown or King controlled the property, resources and lives of the people. The smaller colonies feared the larger colonies would later dominate and rule over the smaller ones. This was a basis for the Bill of Rights and Equal Footing Doctrine in the later Constitution, to ensure one or more states did not dominate the smaller due to land and larger populations. There were no public lands.

Today, the State of Colorado has over 5.7 million of population in 64 counties. That is twice the population of the entire 13 colony/states at time of the Revolution. Nearly 80 percent of Colorado’s population, about 4.5 million is concentrated in only 9 of the 64 counties, which is only 14 percent.

When the 13 new sovereign states formed the Constitution and created the federal body for very limited purposes and powers, there was authorized a land base for the new federal entity to occupy, the District of Columbia. The land was voluntarily ceded by the states of Maryland and Virginia to provide that land. The only other lands available for the federal entity were specified in Art. I, Sect. 8, Cl 17 of the new Constitution, and those lands must be purchased and only by approval of the state legislature involved. There were no federal “public” lands authorized.

New territories were later secured from other countries claims west of the Mississippi, for the express purpose of creating new states and that those territories were to be open to the “public” to settle in to grow sufficient populations to enable a state to be created.

As Colorado was carved out of new territories in 1876, it was stated it “shall be admitted into the Union upon an equal footing with the original states in ALL respects whatsoever.” Further it declared “the State of Colorado shall consist of all the territory included with the following boundaries…”. The new state was no longer territory and no longer “open” for the public to settle at their choice as indicated by “the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory.” There were no longer any “public” lands of the territory, as they had become lands of the state to be “disposed of ” where people could then purchase the land into private ownership. The new federal General Land Office was charged with disposing of and selling those lands on behalf of and for the new state as the federal entity was not authorized to own any lands within a state that was not authorized in Art. I. After some efforts at selling the lands, the Lands Office stopped trying, but did not complete official “disposal” of the remaining unappropriated lands to the state.

The above took place shortly after the War Between the States, which saw a growing federal government assuming authority and power not authorized in the Constitution as evidenced by creation of national forests and parks from the residual unappropriated lands within the new states’ boundaries. Political power and control lifted its ugly head. The national forests were established in 1905 here, ignoring the Constitution and State Enabling Act, but declaring the forest was to be managed and used for the benefits of local people.

In 1976 along came the Federal Lands Policy Management Act (FLPMA) declaring all the federally held lands of the states to be retained in federal control, then began the policy of declaring them “public.” This Congressional Act was again contrary to the Constitution and the States’ Enabling Act. This removed 36 percent of the lands of the state from control of the state. A state is not a state if it cannot control and govern the lands and resources within its boundaries. A new federal “state” had been superimposed within and over the Constitutional state, returning to “kingdom rule” of land and resources and thus lives of the people in just 200 years, 1776 to 1976.

Since that time, environmental laws have been enacted to further limit and eliminate the public access and use of the federal states’ land and resources. Wilderness designations have been legislated which further limits who can access the areas and by what means. The small “Lizard Head Wilderness” contains 41,525 acres with 37 miles of trails that are open only to hikers and equestrians. The trails are for access to a point of interest such as Navajo Lake or one of the five peaks to climb to mark off the bucket list for mountain climbers. Three of the peaks are fourteeners and two more are almost fourteeners. If the trails were given a 300-foot view right of way, the 37 miles would comprise only 1,345 acres out of the 41,525 acres, leaving 40,180 acres not used, managed or protected and not accessible to the rest of the public. The Kill Packer Trail is the most popular trail, with about 2600 users last year as it accesses two fourteeners. These are free use, while in Alaska, Denali climbing has a $365 permit charge. To climb Mt. Everest, there is an $11,000 permit fee per climber.

The federal “public” land “state” in Colorado comprises about 23,870,652 acres, which is larger than any of 13 different eastern Constitutional states and larger than many European countries. What was 1776 all about? What did the statehood statement “upon an equal footing with the original States in all respects what so ever” mean? What control do the people of a county of the state have over its own future when 73 percent of the lands and resources are not under its control and use? Is “We the people” really the government? Who are the public of the “public lands”?

Dexter Gill is a retired forest manager who worked for private industry, three Western state forestry agencies, and the Navajo Nation forestry department. He writes from Lewis, Colo.

From Dexter Gill.