Some years ago Bill Moyers on his TV program, Bill Moyers Journal, made the observation that "We don't often do the right thing until we get the words right." This simple but profoundly important truism is applicable to the current debate in the State of Utah over the future of our public lands.
At the core of this debate is the word "policy." It is said that historically the "policy" of the federal government was to dispose of the public lands. We are told that Congress changed this "policy" as it applies to the western states except for Hawaii. We are told that the new federal "policy" is to retain all remaining public lands under federal ownership with a few exceptions at the discretion of Congress. In other words, we are told that our remaining public lands (primarily forest and BLM lands) are and will remain as federal jurisdictional territory. Under this new "policy" these lands are considered by the federal government to be essentially the same as federal military bases or the District of Columbia. This federal "policy" of non-disposal was set down by Congress in 1976 in the Federal Land Policy and Management Act (FLPMA).
But does Congress actually have the discretion to change its former "policy" of disposal to a new "policy" of permanent retention of the lands in federal ownership? This question assumes that the action of Congress before FLPMA was actually the result of a discretionary "policy." What if this action of Congress before FLPMA was not the result of a discretionary "policy?" What if this disposal actually was the result of congressional compliance with a constitutional "mandate? There is a vast difference between a discretionary congressional "policy" and a non-discretionary constitutional "mandate."
Let's consider this question. Is disposal of our public lands a matter of discretionary congressional "policy" or is it a non-discretionary constitutional "mandate?"
To answer this question we must go to the only source of federal authority over our public lands. This single source is the Property Clause of the U.S. Constitution. This clause reads as follows: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;"
This clause delegates one specific power to Congress and that is the "power to dispose" of the public lands. It also delegates a general and non-specific power "to make all needful rules and regulations" respecting those lands. A rule of legal interpretation directs that the latter general power to make "needful rules and regulations" cannot be construed in such a way as to invalidate or render meaningless the former specific "power to dispose." Therefore, we must accept that the Constitution delegates the specific "power to dispose" to Congress for a reason.
My final question is this. May Congress ignore or do the opposite of the expressly delegated "power to dispose?" Historical authorities answer this question for us: "It may be admitted that a power given for one purpose cannot be perverted to purposes wholly opposite, or besides its legitimate scope." (2 Story, sec. 1081, at 30); "The power can only be exercised as prescribed." (Downes v. Bidwell, 182 U.S. 244, 1901); "It must have been the intention of those who gave these powers, to insure, so far as human prudence could insure, their beneficial execution." (McCulloch v. Maryland, 17 U.S. 316, 1819); "What the Constitution dictates is to be done." (Robert W. Reid, Admission of Missouri, House of Representatives, 1 Feb. 1820, Annals 35:1027-30).
If our historical authorities are right, disposal of the public lands up 1976 was NOT a function of federal "policy." Rather, this disposal was the result of congressional compliance with a clear constitutional "mandate." Before 1976, Congress was exercising its delegated power "as prescribed." Under FLPMA it is not. May Congress ignore this "mandate" or do the opposite of it? Not if we wish to remain a "nation of laws and not men," a nation of justice and not tyranny. We refer to the people's national Constitution as the "Supreme Law of the Land." If Congress may ignore the powers expressly delegated to it under this instrument are we not on the path to tyranny?
It is for this reason that the current discussion over whether Congress must dispose of its title in our public lands is far more important than a common debate over economics or access. At its core, what is at stake in this conversation is our moral authority as a nation of laws and not one of men. "Policy" or" mandate?" What awesome power there may be in a single word, and what danger there is for a public unable or unwilling to discern through learning when that power is being misused.