State Rep. Kathy Rapp has introduced legislation that strikes us as curious.
House Bill 1904 reaffirms a number of federal court decisions that have upheld private access to privately held subsurface minerals, oil and gas beneath federal land.
In that respect, we wonder why such a state law, reaffirming federal court decisions is even necessary.
But, we believe the bill flies in the face of Article 6, Clause 2 of the U.S. Constitution, commonly known as the Supremacy Clause. It says: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."
In essence, the Rapp bill prohibits the U.S. Forest Service, or any federal agency for that matter, from trampling the private property rights granted under the Weeks Act. The Weeks Act, enacted 100 years ago, gave the federal government permission to purchase land for eastern national forests. In the case of the Allegheny National Forest, the great majority of the subsurface rights were not purchased and remain in the hands of private owners.
Private property ownership is already protected in the Constitution under both the 5th and 14th Amendments.
However, we believe Rapp's bill attempts to go farther than those protections and thus conflicts with the Supremacy Clause.
The Sureme Court has dealt with state laws that go beyond the federal scope in the past.
Ironically, the court ruled against a Pennsylvania law in 1956 that made it a crime to advocate the overthrow of the federal government by force. The Pennsylvania Sedition Act, the court said, was unconstitutional because federal law must be assumed to preclude enforcement of state laws on the same subject.
If there is a belief that federal law regarding federal lands is somehow deficient, we believe there are plenty of federal lawmakers available to remedy that.
And yet, Rapp's talking paper on the subject, noting various federal court decisions that appear to provide the very protection her bill seeks, seems to indicate that federal law is performing nicely.