The Trust Land Canard

The nature and purpose of state trust lands has to be one of the more misunderstood subtopics within the larger public lands conversation. I’m certain that much of the confusion about trust lands is simply due to a lack of knowledge on a somewhat arcane subject, but there is no doubt that this confusion is also magnified and cynically exploited by mainstream environmentalists. A clear case in point, from a profile of Congressman Rob Bishop published this summer:

To critics, … handing over the American public’s land to states just doesn’t make environmental sense. “The state of Utah does a terrible job of managing the land it has,” says Scott Groene, executive director of the Southern Utah Wilderness Alliance. “They sold half of the land they were granted at statehood. They have trashed most of the land they still own.” States neither have the money nor impetus for environmental protection, many critics say. When times grow tight, they argue, the temptation to sell off the land to the private sector is too great. Within the last two years alone, Utah has sold several parcels of state land to the highest bidder.

— Solomon, C. Environmentalists’ Public-Lands Enemy Number One. Outside Magazine.

Distilled to its essence, the argument here is that Utah would be a terrible manager of any land transferred to the state by the federal government in the future because it has been a terrible manager of the land it received in the past. The main problem with this argument is that it is based on a false premise, namely that there is categorical equivalence between the lands granted to states at statehood and lands retained by the federal government and managed by agencies like the Forest Service, BLM and National Park Service.

The truth, however, which is certainly known by a professional environmentalist like Groene and should be known by a journalist like Solomon, is that the lands granted to states as they entered the union — starting with Ohio in 1803 — are not actually state or public lands in any meaningful sense of the term. Instead, states took title to these lands only as trustee, with beneficial title belonging to specific, named beneficiaries. As such, these lands were never meant to be managed according to administrative law for the benefit of the general public, but according to trust law principles for the economic benefit of the named beneficiaries, mostly public schools. Some version of this mandate is typically codified in state enabling acts and/or constitutions, giving this distinction the force of law, not mere policy preference.

So for Groene and Solomon to cite the development or sale of trust lands as evidence of any state’s inability to manage land for anything other than economic purposes is not just irrelevant, but is actually a perversion of the fact that the economic use of trust lands was, from the beginning, their entire reason for being.

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