Disposal and Sale

In public land law, disposal often refers to that final and irrevocable act by which the right of a person, purchaser, or grantee, attaches, and the equitable right becomes complete to receive the legal title by a patent or other appropriate mode of transfer[i].

The Constitution places the authority to dispose of public land exclusively in the Congress and executive power to convey any interest in these lands must be traced to some Congressional delegation of its authority[ii].

The Property Clause of the Constitution[iii] provides that Congress has power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the U.S[iv].  Further, Congress has the absolute right to prescribe the manner in which its property is transferred[v].

Congress may dispose of public lands by making a grant under federal law or by treaty[vi].  Further, an act of Congress may divest the U.S. of all property in a portion of the public lands, and transfer it to an individual or by making the issuance of a patent necessary to achieve that object[vii].

Every Act of Congress making a grant is to be treated both as a law and a grant[viii].  The fact that lands are reserved from sale by the land department does not prevent a valid grant thereof from being expressly made by act of Congress, although ordinary grants by Congress do not include such lands[ix].

It is the policy of the U.S. that any disposal of public land take place according to uniform statutory procedures that require each disposal to be consistent with the prescribed mission of the department or agency involved and that reserve to Congress the power to review disposals in excess of a specified acreage[x].

Pursuant to 43 USCS § 1701 (a) (1) public lands are to be retained in federal ownership, unless it is determined, following the land-use planning procedure, that disposal of a particular parcel would serve the national interest.

A tract of the public lands may be sold where the Secretary of the Interior determines that the sale of such tract meets the following disposal criteria[xi]:

  • such tract, because of its location or other characteristics is difficult and uneconomic to manage as part of the public lands, and is not suitable for management by another Federal department or agency; or
  • such tract was acquired for a specific purpose and the tract is no longer required for that or any other Federal purpose; or
  • disposal of such tract will serve important public objectives, including but not limited to, expansion of communities and economic development, which cannot be achieved prudently or feasibly on land other than public land and which outweigh other public objectives and values, including, but not limited to, recreation and scenic values, which would be served by maintaining such tract in Federal ownership.

 

[i] Assiniboine & Sioux Tribes v. Nordwick, 378 F.2d 426 (9th Cir. Mont. 1967).

[ii] Donahue v. Butz, 363 F. Supp. 1316 (N.D. Cal. 1973).

[iii] U.S. Const. art. IV, § 3, cl. 2.

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

[v] In re Supreme Beef Processors, Inc., 468 F.3d 248 (5th Cir. Tex. 2006).

[vi] United States v. Winans, 198 U.S. 371 (U.S. 1905).

[vii] Boatner v. Ventress, 8 Mart. (n.s.) 644 (La. 1830).

[viii] Wisconsin C. R. Co. v. Forsythe, 159 U.S. 46 (U.S. 1895).

[ix] Id.

[x] 43 USCS § 1701 (a) (10).

[xi] 43 USCS § 1713 (a).


Inside Disposal and Sale