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Century-Old Land Grab Remains Intact

October 22, 1985|JIM SCHACHTER | Times Staff Writer

The federal government's grip on 30 million acres of California land that it has held undeveloped for the 135 years since statehood remains intact.

That fact is a grave disappointment to Assemblyman Larry Stirling (R-San Diego), who contends that pettifogging federal lawyers bamboozled the state's naive founders in 1850, grabbed the land--nearly one-third of California's real estate--and have illegally held onto it ever since.

Stirling's dreams of freeing the land from Washington's stranglehold shattered Monday under the gavel of U.S. District Judge Leland Nielsen. Neilsen threw out of court a lawsuit Stirling had filed in hopes of forcing the federal government to either allow public use of the land or make it available for taxable private use.

The judge, while expressing all due respect for Stirling, ruled that the lawmaker was in no position to bring the suit against the United States of America. The underlying question of whether the federal government has the right to hang onto the land was left unaddressed--an issue for another judge to consider, perhaps, some other day.

Stirling insists he was deadly earnest in filing the suit. If he could afford to, he said Monday, he "would appeal all the way to the Supreme Court."

But after investing about $5,000 in campaign funds for the litigation, he instead simply will try to inform his colleagues in the Legislature of the raw deal under which he contends California has suffered since joining the Union.

"Those of us who have grown up in the West have taken it for granted those federal lands were just there," Stirling said. "It is absolutely unauthorized. The fact it's been there over a century doesn't make it right."

Here's what Stirling argued:

The U.S. Constitution grants the federal government the power to own land for a distinct set of purposes--establishing forts and other defenses, post offices and postal roads, a capital and not much else.

What powers the Constitution does not grant to the federal government, it specifically reserves in the 10th Amendment to the states and the people.

But when the United States acquired, by war with Mexico, the territory that later became the State of California, America's leaders smelled an opportunity to make a killing in land. The feds made it a condition of California's admission to the Union that millions and millions of acres within the new state's boundaries become federal property.

Some of that land--Stirling estimates it at 17 million acres--has been devoted over the years to the legitimate purposes envisioned by the Founding Fathers: federal highways, national parks, military bases and the like.

However, the remaining 30 million acres--from barren desert to tracts in the heart of Rancho Bernardo--have sat unused, lately under the control of the Bureau of Land Management.

Stirling says such land banking, and indeed the absence of any plans for using the land, are not what the Constitution's framers intended, and in fact constitute a "subversion" of the founders' intent.

"It is a fundamental blunder of such monumental proportions that it is difficult to perceive how wrong this is," Stirling said.

Other state officials did not perceive the situation as Stirling did.

Atty. Gen. John Van de Kamp turned aside Stirling's request that he undertake the case against Washington. Instead, the state ended up a defendant in Stirling's action.

Three years ago, Stevens said, the Legislature had asked the California attorney general's office to determine if there was a legal basis for laying claim to the vast tracts of federal land in the state.

"The conclusions," he said, "were that it was extremely doubtful we had legal grounds to recover on the basis of our state sovereignty being infringed, or any like theory--or any other theory."

Stirling says Van de Kamp simply did not want to offend his environmentalist supporters, who favor continued federal ownership of the land as the best way to maintain its pristine nature.

Officials--and there were others, including Gov. George Deukmejian and state land commissioners--who failed to join his crusade helped deny Californians a birthright that could, once sold to private owners and taxed, help pay the state's way for decades to come, Stirling said.

"We are not able to meet our obligations to education, mental health, retirement, infrastructure, . . . let alone Medi-Cal," Stirling said.

"The loser is the people of California, who don't realize their land is tied up by the dead end of federal ownership. They don't know the revenue base of California is too narrow for them to meet their obligations."

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