By Dominating Public Lands, Feds Now Exercise Authority Framers Never Meant Them To Have


Almost everyone at one time or another has enjoyed the great outdoors on or near so-called “public lands” with little or no thought about what the term means, or what government entity possesses control over the land that the public is supposed to have access to.

Over time, the term “public lands” here in the United States, and more specifically in the Western U.S, has come to mean land possessed by the federal government that lies within state boundary lines.

First, the matter of Constitutional authority:

There are several public policy flaws that arise from the notion that the federal government should possess any land within a state other than to secure an enclave as defined by the Constitution of the United States.

Under Article I, Section 8, Clause 17, the framers agreed “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”

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Next, the matter of Statehood and Domination:

There are three legal contracts commonly accepted in American jurisprudence that are the foundation of statehood. They include “The Equal Sovereignty Principle, The Equal Footing Doctrine, and The Compact Theory.” Each of these foundational components of American statehood jurisprudence point to the serious question of whether Congress can abrogate a contract — an enabling act — made at the granting of statehood with so-called “needful laws.”

FIn the well-documented Madison Debates of Sept. 5, 1787, over what should be memorialized about the power of the federal government to purchase land for the seat of government, and for needful installations such as Federal arsenals, forts and such, the framers Sherman, Gerry, King and Morris debated the need for language in Article I, Section 8: “[they] thought himself the provision unnecessary, the power being already involved: but would move to insert after the word ‘purchased’ the words ‘by the consent of the Legislature of the State’ This would certainly make the power safe,” (Yale, 2020, Pg. 1).

Just prior to Mr. King’s statement, Elbridge Gerry warned of domination by the federal government, contending that “this power might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the Genl. Government” (Yale, 2020, Pg. 1).

And so it has come to pass that the very thing Mr. Gerry and Mr. King debated might or might not happen is now the norm, rather than the exception in dealings between Arizona — and indeed other sister Western states — and the federal government. Federal agencies never seem to be satisfied with the level of control they possess by act of Congress, and in an ever-expanding agenda seem to prove the very argument that Elbridge Gerry warned of.

There are major changes in public-lands access proposed for our National Forests as an example. These changes will directly impact rural communities, industry business, jobs, tax revenue, conservation, fire management, the Arizona OHV fund, recreation, private property, state rights and the overall ability for state agencies to fulfill their duties.

Many pro-mixed-use public-lands groups have come together, including the American Mining Rights Association, the Gold Prospectors Association of America, the Blue Ribbon Coalition, UTV Utah, the Arizona Association Of 4 Wheel Drive Clubs, the Rocks and Wheels 4×4 Club, Summit 4×4, Arizona Overland, the Average Joe 4X4 Competition and several others, including industry business leaders.

Together, these groups have over 250,000 members comprising the off-road community and they contribute significantly to outdoor recreation in Arizona. Members of this community are concerned about the changes proposed by the United States Forest Service and the Bureau of Land Management. A number of published articles are available to help with research material concerning these changes. (To learn more details, follow the hyperlinks below.)

Current changes that have been proposed, the state and federal laws that are being violated, and what has previously been done concerning BLM is detailed below. The reader should be mindful this Op-Ed addresses just five of over 50 proposed changes that need the attention of the secretary of the interior and secretary of agriculture, as well as Congress.

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Travel Management Planning

In 2015, the Forest Service put new rules in place for motorized travel. This new rule nullified old federal regulations and created 36 CRF 212 Travel Management. Under these new Travel Management Rules, thousands of miles of roads have been closed all over Arizona. Arizona isn’t the only state that has these issues. Every state across the West has fell victim to 36 CFR 212 Travel Management.

The Forest Service is closing these roads on the basis of environmental protection. According to their documents, both places with cultural-historical significance and places with no significant destination value will be protected. Campsites, hiking trails, roads and developed recreation areas that are in, near or around these areas are threatened with closure. We believe these terms can describe nearly every place in the National Forest.

Apache-Sitgreaves National Forest

Tonto National Forest

  • 1,460-mile proposed road closure
  • 1/4 of the forest roads in Tonto
  • Follow this link to learn more

Coronado National Forest

  • Coming soon; expecting it by the end of the year
  • Follow this link to learn more

Resource Management Planning

Tonto National Forest Resource Management Plan

The Forest Service is proposing some drastic changes in the way the Tonto National Forest is managed. The agency is proposing the closure, decommissioning and removal of developed recreation areas, interpretive centers, dispersed camping areas, developed camping areas and several other areas that are used every day by Arizona residents.

Furthermore, the plan calls for the decommissioning of campsites, recreation areas, roads and hiking trails that have “no significant destination value” — a term some of us believe to be very dangerous. Roads with more than a 10 percent grade; drive to mountain tops or along ridgelines; or cross rivers or unstable soil are all slated for closure but unspecified in their plans. Locations of cultural or historical significance are kept confidential while the Forest Service closes recreation opportunities in, near or around these areas.

This plan also includes OHV and wilderness permit zones, 49 proposed wilderness areas and 20 proposed Wild and Scenic Rivers, which in themselves bring their own sets of regulations.

Read material on this plan and find documentation at this link.

Four Forest Restoration Initiative

Rim Country Restoration Project

The Rim Country Restoration Project is a collaborative effort between the Tonto, Coconino and Apache-Sitgreaves National Forests. The plan includes a lot of commonsense projects that are far overdue. However, nested in the plan is the closure of over 1,200 miles of unspecified forest roads. Unlike a Travel Management Plan, the Forest Service does not tell what roads are being closed.

The area affected by the proposal includes approximately 540,020 acres on the Black Mesa and Lakeside Ranger Districts of the Apache-Sitgreaves National Forests, 398,880 acres on the Mogollon Rim and Red Rock Ranger Districts of the Coconino National Forest and 299,710 acres on the Payson and Pleasant Valley Ranger Districts of the Tonto National Forest.

Road decommissioning would occur on approximately 200 miles of existing system roads on the Coconino and Apache-Sitgreaves National Forests and approximately 290 miles of roads on the Tonto National Forest. Up to 800 miles of roads on all three forests could be decommissioned.

Read more on this with documents at this link.

Economic Impact

The economic impact of the outdoor community in Arizona is enormous. There is no doubt that rural Arizona, jobs and funding for vital programs will suffer the consequences. As motorized access and other recreation opportunities shrink, so will local tourism. The weekends bring loads of visitors from all over the world to enjoy our motorized trails. Areas such as Sedona, Grand Canyon and Mogollon Rim generate millions if not billions of dollars for the local economy and produce thousands of jobs for Arizona residents.

The Arizona State Parks and Trails and Arizona State University recently did a study on the economic impact of the off-road community in Arizona. The study shows around 1.8 billion dollars in consumer spending every year. The study suggests that 1.6 million Arizona residents contribute over 360,000 dollars in annual tax revenue, and create 22,000 jobs.

View the report here.

Likewise, the Outdoor Industry Association estimates Arizona’s outdoor community generates 21.2 billion dollars in consumer spending and 1.4 billion in state and local tax revenue and creates 201,000 jobs.

View the report here.

RS 2477 and Arizona Revised Statute 37 931

Many of these roads fall under the old Mining Act of 1866 and are considered RS 2477 Rights of Way. The Arizona legislature has passed legislation giving Arizona broad authority over these roads. Arizona Revised Statute 37.931 is Arizona’s claim on all RS 2477 roads over federal lands. Attorney General Mark Brnovitch reasserts these claims and explains the law in full detail.

The Mining Act of 1865 was repealed by the Federal Lands Policy Management Act of 1976. However, FLPMA allowed all existing roads under RS 2477 to remain valid. In a nutshell, the federal government cannot close any road or “right of way” that was built before 1976. Only an Arizona court of competent jurisdiction has the authority to close a RS 2477 Right Of Way.

This is written in both federal and state law.

Congressional Review

There is a solution and it’s used every day to wage lawsuits against the federal government. In this section, we will go through two examples used on both the Bureau of Land Management and the Forest Service.

These Congressional Review laws apply to every single regulation or rule enacted by every federal agency. Failure to follow this law can result in the rules being overturned across the country, counties or states being exempt from rules, and out-of-court settlements. The Congressional Review Act requires every federal regulation that falls under the definition of “rule” to go to Congress for a vote. Through previous court proceedings, we have learned, neither the Forest Service nor the Bureau of Land Management has sent a single regulation for congressional review.

On Oct. 23, 2017, Sen. Lisa Murkowski of Alaska submitted the Tongass National Forest Resource Management Rule to the Government Accountability Office (GAO) for congressional review. The GAO determined the plan met the agency’s definition of “rule.” In response, Alaska filed a lawsuit against the Tongass National Forest to overturn the rule. As a result, the Forest Service settled out of court by exempting Alaska from the Resource Management Planning.

Read the final decision from the GAO here.

In 2018, Arizona stopped the Bureau of Land Management from closing thousands of miles of roads. Arizona completely overturned the rules across the entire country. The Bureau of Land Management Resource Management Plan 2.0 was overturned “as if it had never taken effect.” This effectively stopped and reopened every road that was closed by BLM travel management plans across America.

A Mohave County supervisor took the issue to the White House when she attended a meeting on rural economic development. She explained the biggest economic threat in Mohave County is the BLM Travel Management Plans. The Kingman Travel Management Plan ended that day.

Under the guidance of the Congressional Western Caucus, Resource Management 2.0 was taken to Washington for a final resolution. Both the House and Senate unanimously agreed to disapprove of the Resource Management 2.0 rule. The final decision was published in the Federal Register on Dec. 21, 2017, and became effective immediately. It’s a victorious read.

Read the final decision here.

It all started right here, in Arizona, with a Mohave County Supervisor. Read the story here.


The off-road and outdoor communities urge you to support these issues. On behalf of the 250,000-plus members of the groups mentioned above, we ask that we bring this to Washington for a final solution. Removing Forest Service regulations 36 CFR 212 Travel Management, 36 CFR 261 Prohibitions and 36 CFR 219 Planning will put a stop to the over-regulation that is killing rural Arizona. It will reopen roads and recreation opportunities across America and bring the much-needed rural consumer spending.

With around 3,400 miles of dirt roads over federal land and developed recreation areas facing closure, we believe it’s important for you, as a servant of the people, to take this to Washington for a final solution. Arizona did it before, and we will do it again. Knowing you have the support of so many, it should be no problem.

Arizona’s motorized trails are not just a dusty path to nowhere. These roads are part of Arizona history — from the Hualapais to Bradshaw to the towering sky islands. These mountains were once a beehive of activity from the mid-1800s to the 1930s. Rich mining towns attracted people from all over the world in search of a better life — including some of Arizona’s most memorable pioneers. The roads provided access to hundreds of mining claims, homesteads and ranches and were vital to the settlement of Western America. Closing these roads would be closing our history to the very people who were supposed to enjoy them.

The federal government is now exercising that which our Framers once thought unthinkable: domination of the limited federal government over a state sovereign.

The views expressed in this opinion article are those of their author and are not necessarily either shared or endorsed by the owners of this website. If you are interested in contributing an Op-Ed to The Western Journal, you can learn about our submission guidelines and process here.

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Mark Finchem represents the 11th Legislative District in the Arizona House of Representatives. He is the chairman of the House's Federal Relations Committee.

Kevin Allard is a U.S. citizen and Arizona resident.