Article 4, Section 3, Clause 2 — Federal And State Power Over Public Lands

prev | next

Article IV, Section 3, Clause 2:

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; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

The Property Clause provides that public lands may only be disposed of with congressional authorization.[1](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn1art4 " United States v. Fitzgerald, 40 U.S. (15 Pet.) 407, 421 (1841). See also Utah Power & Light Co. v. United States, 243 U.S. 389, 403–04 (1917). ") The Supreme Court has held “that the power of Congress is exclusive, and that only through its exercise in some form can rights in lands belonging to the United States be acquired.” [2](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn2art4 " Utah Power & Light Co., 243 U.S. at 404. ") However, the Court held that, by being aware of and doing nothing to halt the long-time practice of presidents withdrawing land from the public domain by Executive Orders, Congress had acquiesced to the practice.[3](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn3art4 " Sioux Tribe v. United States, 316 U.S. 317, 324–25 (1942); United States v. Midwest Oil Co., 236 U.S. 459, 469 (1915). ") In 1976, Congress reversed course by passing legislation establishing procedures for land withdrawals and explicitly repealing congressional acquiescence to the practice, as well as any implicit executive withdrawal authority.[4](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn4art4 " Pub. L. No. 94–579, § 704(a), 90 Stat. 2792 (1976). ")

Congress may dispose of public property in a manner that furthers public policy, as determined exclusively by Congress.[5](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn5art4 " United States v. City of San Francisco, 310 U.S. 16, 30 (1940) ( “The power over the public land thus entrusted to Congress is without limitations. And it is not for the courts to say how that trust shall be administered. That it for Congress. Thus, Congress may constitutionally limit the disposition of the public domain to a manner consistent with its views of public policy.” (internal citations omitted)). See also Light v. United States, 220 U.S. 523, 535–36 (1911). ") The Court has likened congressional authority over federal land within states to that of states’ police power.[6](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn6art4 " Camfield v. United States, 167 U.S. 518, 525 (1897). ") The Court has explained that “[t]he general government doubtless has a power over its own property analogous to the police power of the several states, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case.” [7](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn7art4 " Id. ") In its 1976 Kleppe v. New Mexico decision, the Court restated the applicable principles governing Congress’s power under the Property Clause unanimously upholding a federal law to protect wild-roaming horses and burros on federal lands.[8](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn8art4 " Kleppe v. New Mexico, 426 U.S. 529, 539 (1976). ") The Court explained that the Property Clause, in broad terms, gives Congress the power to determine what are “'needful’ rules ‘respecting’ the public lands.” [9](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn9art4 " Id. ") The Court continued that, while the outer limits of this authority is unsettled, “we have repeatedly observed that '[t]he power over the public land thus entrusted to Congress is without limitations.’” [10](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn10art4 " Id. (quoting City of San Francisco, 310 U.S. at 29–30). See also Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 294–295 (1958); Alabama v. Texas, 347 U.S. 272, 273 (1954); FPC v. Idaho Power Co., 344 U.S. 17, 21 (1952); United States v. California, 332 U.S. 19, 27 (1947); Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872); United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840). ")

Over the course of the Nation’s history, the Court has held that Congress’s authority over public land includes: the right “to prescribe the times, the conditions, and the mode of transferring this property, or any part of it, and to designate the persons to whom the transfer shall be made” [11](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn11art4 " Gibson, 80 U.S. (13 Wall.) at 99. See also Emblem v. Lincoln Land Co., 184 U.S. 660, 664 (1902); Irvine v. Marshall, 61 U.S. (20 How.) 558, 566–67 (1858). ") ; “to declare the dignity and effect of titles emanating from the United States” [12](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn12art4 " Bagnell v. Broderick, 38 U.S. (13 Pet.) 436, 450 (1839). See also Field v. Seabury, 60 U.S. (19 How.) 323, 332 (1857). ") ; to determine the validity of grants which precede the government’s acquisition of the property[13](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn13art4 " Tameling v. U.S. Freehold & Immigr. Co., 93 U.S. 644, 663 (1877). See also Maxwell Land-Grant Case, 121 U.S. 325, 365–66 (1887). ") ; to exempt lands privately acquired under the homestead laws from previously contracted debts[14](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn14art4 " Ruddy v. Rossi, 248 U.S. 104, 107 (1918). ") ; to withdraw land from settlement and to prohibit grazing thereon[15](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn15art4 " Light v. United States, 220 U.S. 523, 535–36 (1911). See also The Yosemite Valley Case, 82 U.S. (15 Wall.) 77, 93–94 (1873). ") ; to restrict the construction of fencing on private land that abuts public land to prevent the unlawful occupation of public property[16](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn16art4 " Id. See also United States v. Waddell, 112 U.S. 76, 79–80 (1884); Jourdan v. Barrett, 45 U.S. (4 How.) 169 (1846). ") ; to limit destruction of federal property[17](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn17art4 " Hunt v. United States, 278 U.S. 96, 101 (1928). ") ; to define and abate nuisances that affect the property[18](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn18art4 " Camfield v. United States, 167 U.S. 518, 525 (1897). ") ; to prohibit the introduction of liquor on lands purchased by the federal government for an Indian reservation[19](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn19art4 " United States v. McGowan, 302 U.S. 535, 539 (1938). ") ; and to protect wildlife located on public land.[20](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn20art4 " Kleppe v. New Mexico, 426 U.S. 529, 539 (1976); McKelvey v. United States, 260 U.S. 353, 359 (1922). ")

In Kleppe, the Court recognized that Congress’s power over federal lands includes power to regulate the lands, stating “Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant the Property Clause.” [21](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn21art4 " Kleppe, 426 U.S. at 543 (citing Mason Co. v. Tax Comm’n of Wash., 302 U.S. 186, 197 (1937); Utah Power & Light Co. v. United States, 243 U.S. 389, 403–405 (1917); Ohio v. Thomas, 173 U.S. 276, 283 (1899)). See also Wilson v. Cook, 327 U.S. 474, 487–88 (1946); Surplus Trading Co. v. Cook, 281 U.S. 647, 650 (1930). ") No state may tax federal property pursuant to state authority,[22](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn22art4 " Van Brocklin v. Tennessee, 117 U.S. 151 (1886). ") nor may state legislation interfere with the power of Congress under the Property Clause or embarrass its exercise.[23](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn23art4 " Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872). See also Emblem v. Lincoln Land Co., 184 U.S. 660, 664 (1902); Irvine v. Marshall, 61 U.S. (20 How.) 558 (1858). ") Moreover, when Congress acts with respect to lands covered by the Clause, its legislation preempts conflicting state laws.[24](https://www.law.cornell.edu/constitution-conan/article-4/section-3/clause-2/federal-and-state-power-over-public-lands#fn24art4 " Kleppe, 426 U.S. 529; Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 593–94 (1987) (applyin