Governmental Authority and Management

Congress has the constitutional authority to regulate and dispose of and make all necessary rules and regulations respecting the territory or other property belonging to the U.S[i].  This power is not subject to any limitations[ii].  Congress exercises the powers of both a proprietor and a legislature over the public domain.  Consistent with these powers, congress may control the occupancy and use of the public lands, protect the public from hazardous conditions on those lands, and regulate wildlife on those lands[iii].

Moreover, the public lands of the U.S. are held by Congress, not as an ordinary individual proprietor, but in trust for all the people of all the states to pay debts and provide for the common defense and general welfare under the express terms of the constitution.  It will not matter whether the title is acquired by cession from other states, by treaty with a foreign country, or the lands are located within states or in territories[iv].

Generally, consent of a state or cession is not required when Congress acts pursuant to its plenary authority to regulate the public lands.  Congress can acquire exclusive or partial jurisdiction over lands within a state by the state’s consent or cession.  However, the presence or absence of such jurisdiction has nothing to do with the powers of Congress[v].

It is to be noted that Congress manages the public lands in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values[vi].  Pursuant to 43 USCS § 1701, Congress exercises its constitutional authority to withdraw or otherwise designate federal lands for specified purposes.  Further, the public lands are managed in a manner that recognizes the need for domestic sources of minerals, food, timber, and fiber from the public lands[vii].

The Secretary of the Interior is charged with the supervision of public business relating to public lands, the bureau of land management, fish and wildlife service, the national park service, and other subjects and agencies[viii].  The Secretary of the Interior manages the public lands under principles of multiple use and sustained yield, in accordance with the land use plans developed by him/her[ix].

It is to be noted that the use, occupancy, or development of any portion of the public lands contrary to any regulation of the secretary of the interior or other responsible authority is unlawful and prohibited.  Any person who knowingly and willfully violates any regulation will be fined up to $ 1,000 or imprisoned up to twelve months, or both[x].

Similarly, the Secretary of the Interior may establish reasonable filing and service fees and reasonable charges, and commissions with respect to applications and other documents relating to the public lands and may change and abolish such fees, charges, and commissions[xi].  It is to be noted that the secretary of interior has authority and is under duty to investigate what public lands must be surveyed and what public lands must be disposed of by the U.S.  Surveys are received as prima facie evidence of correctness on the legal presumption that the surveyor has performed their duty[xii].

Generally, inclosures of public lands are prohibited when it is made by persons who do not have a good faith claim or color of title, or who have not asserted a right to a claim or color of title in good faith at the proper land office under the general laws of the U.S.

Further, the Secretary of the Interior is required with public involvement to develop, maintain, and, revise land-use plans that provide by tracts or areas for the use of the public lands.  Land use plans is developed for the public lands regardless of whether such lands were previously classified, withdrawn, set aside, or otherwise designated for one or more uses[xiii].  The Secretary of the Interior also ascertains the boundaries of the public lands, provides an opportunity for participation by affected citizens in rulemaking, decision making, and planning with respect to the public lands is provided[xiv].

It is to be noted that Congress possesses the authority to dispose of public land and the executive power to convey any interest in these lands must be traced to some Congressional delegation of its authority.  Congress can dispose of public lands by making a grant under federal law or by treaty.  Similarly, a tract of the public lands can be sold if the Secretary of the Interior determines that the sale of such tract meets some standard disposal criteria[xv].

Generally, rights in state public lands may be terminated or forfeited by an action brought by the government.  A land patent is impeachable only for fraud or mistake.  If a patent for land is procured by fraud, the U.S. has the same remedy in a court of equity to set aside or annul a patent for land on the ground of fraud like an individual would have in regard to his/her own deed procured under similar circumstances[xvi].

[i] O’Donoghue v. United States, 289 U.S. 516 (U.S. 1933).

[ii] United States v. West, 232 F.2d 694 (9th Cir. Ariz. 1956).

[iii] Kleppe v. New Mexico, 426 U.S. 529 (U.S. 1976).

[iv] Utah Power & L. Co. v. United States, 230 F. 328 (8th Cir. Utah 1915).

[v] Nevada v. Watkins, 914 F.2d 1545 (9th Cir. 1990).

[vi] 43 USCS § 1701.

[vii] 43 USCS. § 1701(a)(12).

[viii] 43 USCS § 1457.

[ix] 43 USCS § 1732.

[x] 43 USCS § 1733.

[xi] 43 USCS § 1734.

[xii] Cofield v. McClelland, 83 U.S. 331 (U.S. 1873).

[xiii] 43 USCS § 1712.

[xiv] 43 USCS § 1702.

[xv] 43 USCS § 1713.

[xvi] United States v. Minor, 114 U.S. 233 (U.S. 1885).


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