The state of Utah, which has given the federal government until year's end to turn over roughly 30 million acres of public lands, has no legal basis to make such a claim, according to a legal analysis of the issue.
Utah is just one of a handful of Western states that have seen efforts made to force such a transfer. The bids, which harken to the Sagebrush Rebellion of the 1970s, also have been launched in Arizona, Colorado, Nevada, New Mexico, and Washington. But Robert Keiter, the Wallace Stegner Professor of Law at the University of Utah, and John Ruple, a Research Associate and Fellow at the Wallace Stegner Center for Land, Resources and the Environment at the university, say it would take an act of Congress to make such a transfer.
"The federal government’s authority over public lands is set forth in the Property Clause of the United States Constitution, granting Congress the power to 'dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,'" the two note in A Legal Analysis of the Transfer of Public Lands Movement released last week and attached below. "Utah and her sister states accepted the U.S. Constitution as the 'supreme law of the land' as a condition of statehood. The Supreme Court has made clear that the Property Clause grants Congress an “absolute right” to decide upon the disposition of federal land and '[n]o State legislation can interfere with this right or embarrass its exercise.'"
Despite that legal foundation, the Western states haven't backed down from trying to force a transfer.
In Arizona, transfer legislation made it through both legislative chambers before falling to the Governor’s veto pen. Unwilling to admit defeat, transfer backers then unsuccessfully attempted to amend the Arizona Constitution. During 2013, the Colorado Legislature beat back two transfer bills, New Mexico defeated five similar efforts only to thwart a similar effort the next year, and Washington State had to fight off a transfer bill. Following on its Transfer study bill, the Nevada Land Management Task Force recommended introducing state legislation requiring the federal government to convey federal public lands to Nevada.
Somewhat ironically, there was a time when the federal government was willing to turn over public lands in the West, the two write.
In the West, the federal government tried to convey more public land to the states but many states, including Utah, refused. In 1932 President Hoover convened a committee to investigate turning over the public domain to the states. Although Congress drafted the necessary legislation, those bills died for lack of Western support. States were reluctant to acquire the public domain because they feared they would loose federal reclamation funds, mineral revenue, and highway funds, while facing increasing administrative costs.
It should be noted that Utah's bid is aimed at U.S. Forest Service and U.S. Bureau of Land Management lands, not those under the management of the National Park Service.
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Comments
From this morning's Salt Lake Tribune:
http://www.sltrib.com/news/1763269-155/state-sahara-area-parks-utah-blm
The above opinion ignores some early Constitutional decisions. The clause referred to applies to "Territory", i.e. land that didn't belong to a state. Once the land became part of a state, the level of federal jurisdiction changed.
Come on, EC. Give us a citation. The law never changed when a territory became a state. Actually, federal rights go all the way back to 1777 and the Articles of Confederation, when the landed states (colonies) with sea to sea charters agreed to give them up in the interest of the "common sacrifice" of the Revolution. Georgia was the last holdout in 1802.
I love it when patriots wave the flag and totally forget their history. The public lands belong to all Americans. Always have, and always will. If Utah wants to do something constructive, it should shut up and take a seat, and while they're at it, pass a beautification law eliminating billboards. Interstate 15 looks like a junkyard. And they want us to come and visit "their" five national parks. Yeah, right.
Alfred - will get you some citations in a bit. In the meantime, ponder why the Property Clause is in Article IV rather than Article 1 which delineates the power of Congress.
Alfred - Check out Fort Leavenworth Railroad Co. v. Lowe 1885
EC--Oh, please, not that stupid thing again. In any event, here is a recent answer to it:
http://www.yakimaherald.com/opinion/editorials/2124800-8/rancher-should-...
My answer appears in NATIONAL PARKS, May/June 1992, pp. 24-25. "A Word to the Wise: The movement that favors abolishing public lands so a few can profit has counted on historical amnesia."
Perhaps Kurt can get permission to reprint it. I will gladly update it if he can.
Uh - your linked article references Nevada, not Utah. Utah's original Constitution reliquishes claims to Indian lands but I see no such reference to federal lands.
And I doubt that Justice Field would think his majority opinion was "stupid".
Apparently the justices in Lessee of Pollard v Hagan and even Dred Scott v Sandford didn't think so. Nor did Chief Justice Story, perhaps the most learned and respected Justice to have ever served on the court. His words:
'If there has been no cession by the state of the place, although it has been constantly occupied and used under purchase, or otherwise, by the United States for a fort or arsenal, or other constitutional purpose, the state jurisdiction still remains complete and perfect;'
As to your article - I am not aware of any movement that is looking to "abolishing public lands". Perhaps you can provide a citation.
Utah, in its Enabling Act, gave up all rights to unappropriated lands:
"Second. That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States;"
By the way, while I think it was the intent of the Founding Fathers for the land to be taken out of Federal hands, I don't believe the wording of the Constitution actually requires the Fed Gov to reliquish it ownership - ony its jurisdiction.
dahkota - gotta read the whole thing
...owned or held by any Indian or Indian tribes;
It says nothing about "owned or held by the US Government".
[edit] - Upon further review, that colin may make a difference. I will have to further investigate how it was written and meant. I believe that would be consistent with my "ownership" comment above but don't believe it changes the jurisdiction argument.
By the way - here is an interesting analysis of HB 148
http://dnr.alaska.gov/commis/cacfa/documents/FOSDocuments/UtahLegalOverv...
The argument here is that the disclaimer of rights and title (referenced earlier) was to create a clear title so that the requirement stated later in the enabling act, that the lands "shall be sold", could be accomplished. The argument of TPLA is not that the lands were owned by the State day one but that the Feds as part of the enabling act promised to sell the lands and haven't fullfilled that promise.
As I mentioned earlier, I do believe that the Founding Fathers envisioned the government selling off its lands other than those needed for forts, arsenals et al. and the above interpretation would be consistent with that vision.
Gotta love those still stuck on the ideology of manifest destiny, especially while the country is overpopulated from sea to shining sea. So we fight over the last remaining open spaces from being paved over from realtors. 100 years ago, a president, congress, and some visionaries realized they needed to set aside some land or else it would all become wasted, ran over, and exploited like it was on the eastern side of the country. To pretend that what happened in 1776 is still current with the current political tides of today is rather childish, if you want my opinion. The country is not even close to being what it was in 1776.
National Parks were not even on the radar of politicians in 1776. The science, technology, understanding of ecosystems wasn't even near what it was today, hence why we are now trying to recover from their mistakes.
Why are you here EC? I really would like to know. You obviously don't care about National Parks, and only seem to just want to irritate and stir up trouble. We could all argue the sky is blue, and you'd argue it's red and try to find anything to back your ability to just take an opposite view point. Reminds me of a monte python skit called the "Argument Clinic". It would be a great tragedy to see Utah's famous 5, or even any of the USFS lands turned over to the primitive Utah government, which is more a mormon controlled theoracy and not really a state, even if we choose to call it that.
In other words, if a murderer in Utah hides out on the public lands, the state has every right to pursue him without asking permission from the federal government. On that the Supreme Court would agree. However, as to forcing the federal government to part with the public lands, Dahkota has its right. Beginning with the Ordinance of 1785, Congress reserved that power to itself. New and equal states were to be formed from the western territories (the Ordinance of 1787), but again, under land laws enumerated by Congress. But why argue here? Read this magnficent book by the dean of public land historians, Roy M. Robbins, OUR LANDED HERITAGE: THE PUBLIC DOMAIN, 1776-1936 (Princeton: Princeton University Press, 1942); reprint edition, (Lincoln: University of Nebraska Press, 1962).
As I keep saying, we don't teach these things in higher education anymore. So don't blame EC if he doesn't get it. Even the President of the United States doesn't get it. The public lands don't belong to General Electric, either, but the president (and General Electric) sure act as if they do. See:
http://www.drecp.org/
And we are much worse off for it. If we still followed the founding principles we would be far better off.
BTW Gary you might want to pay attention to Kurt's addendum:
"It should be noted that Utah's bid is aimed at U.S. Forest Service and U.S. Bureau of Land Management lands, not those under the management of the National Park Service."
When the Constitution was written, the West was Ohio and Kentucky. I'm sure our Founding Fathers were not anticipating the Louisiana Purchase or transcontinental railroads. The Constitution was deliberately left with areas of vagueness to allowe for changes they knew were coming even though they couldn't have imagined what those changes might be.
That was part of the genius of those who wrote that document.
Oh I get it Alfred, I agreed (actually pointed it out first) that there was no US Constitutional requirement for the government to part with the lands though the jurisdiction changes upon being convertion to a state.
However, the basis of HR 148 is not that the lands belong to Utah because of a US Constitutional requirement but because it was contractually agreed upon in the Utah enabling act. The Feds have the right to do what they want with their land ownership but if they contractually agree to sell it, that is what they have to do regardless of Article IV or the Supremecy Clause.
This is why I like this site and people like you Alfred. It does bring up important issues and force people to listen to others' arguments and do deeper investigation. Under (because of) Article IV, I didn't see much substantiation of a claim to title of the land by the State of Utah. Looking deeper into the language of the Utah enabling act (sorry Virginia's higher education didn't teach the Utah Constitution) I see a stronger (but not rock solid) case.
Did the US Government actually contractually agree to sell the land? That certainly is up for debate. Was there a required time frame? Is the remedy of the contract breech seizure? All open questions. However, the case is not the slam dunk implied by the subject article and can't be substantiated at all by the reasons given - i.e the Property Clause and the Supremecy Clause
Can you point to any writing of the founding fathers that says that? If "changes" were necessary they made it quite clear how they were to be done via Article V.
The genius of the document was not trying to regulate every aspect of peoples lives but instead to recognize core principles of natural rights and liberties and create a Federal government with very limited power, reserving the bulk of the power to the people via the states. Those principles are as valid today as they were in 1779.
ECBUCK, you are a jewell! Refreshing to hear your reasoned posts in a world bent on decline. Rock ON!
No, the federal government did not "contractually agree" to sell off the public lands in the western states. Read Roy M. Robbins. What the federal government agreed to do was provide those lands under the Homestead Laws, until, in 1935, homesteading was finally brought to a close. However, one can still file a mining claim in Utah--or any other western state. The law of 1872 still holds in those cases, even on the national forests, which Gifford Pinchot once vehemently opposed.
The point is: The West did not make itself. It was rather made by the East, again, beginning with the common sacrifice of the Revolution. Who paid Napoleon for Louisiana? The East. Who bled for Texas? The East. Who conquered Mexico and "freed" the Rocky Mountains? The East. Who established California and paid for Alaska? The East. Now Utah wants to say it is "owed" something? You bet. A stiff kick in the you-know-what. Unfortunately, because this president and Congress are just as ignorant of American history, they indulge in enabling rather than leadership.
All of the prerequisites for making new states were guaranteed by the Ordinance of 1787, which itself predated the Constitution and amazingly survived. Then again, why not? It and the Ordinance of 1785 were brilliant pieces of legislation, providing for the orderly disposal of the public domain, although yes, western settlers did ask for needed reforms.
Those Congress granted, but not the right for any state to dictate the terms of nationhood. The Civil War then sealed the question. Once in the Union, you have no right to quit. Does Utah want to quit? Be my guest. Turn in your American flag tomorrow morning and fly one of those billboards you love so much. You sure make them obnoxious enough so every motorist is forced to look. But don't tell this American that you are more American than I. I know my history; I know where you came from. And without the sacrifice of all Americans, the state of Utah would not exist.
Section 3 of the Utah enabling act (with which the state agreed) stated that Utah forever disclaim all right and title to unappropriated land. How this can be construed as the Feds being contractually obligated to transfer the land to Utah, I will never know.
Section 6 details which lands the Feds will give Utah when they become a state.
Section 7 enumerates 100 further sections the Feds will give Utah for public buildings and such when it becomes a state.
Section 8 grants further lands from the Feds to the state for building universities or for sale to support the universities.
Section 9 states that if the Feds ever sell any of their land in Utah, that the Feds shall give Utah 5% of the proceeds.
Section 12 grants further amounts of Federal land to the state of Utah and then states: "The said State of Utah shall not be entitled to any further or other grants of land for any purpose than as expressly provided in this act; and the lands granted by this section shall be held, appropriated, and disposed of exclusively for the purposes herein mentioned, in such manner as the Legislature of the State may provide. "
So, the Utah Enabling Act states that Utah forever gives up claims to Federal lands except the land the Feds gave or granted to the state. And, the Utah enabling act, with which Utah agreed, states that Utah is not entitled to any additional land not listed in this act.
So, now Utah is demanding the Feds transfer/extinguish title to a lot of land. Land that was never Utah's. Because they want it. There really is no constitutional question here.
The case of Fort Leavenworth v Lowe is a red herring. Kansas ceded land to the Federal Government. When it ceded the land, it retained the right of taxation. This has no relation to the Utah issue, as Utah never owned the land in question; it has always been held by the federal government.
It doesn't say "if" it says "shall" . That is the cruxed of their argument.
BTW - I see that as section 3 in Article X. I don't see that in any Section 9.
[Further edit] - I was reading from the Constitution rather than the Enabling Act. Sections are different but the language is the same "shall" not "if".
Alfred,
Ordered Robbins book this AM. Will be a little while till it gets here and I have a chance to read. In the meantime, can you share his argument as to why Article X Secton 3 doesn't create that obligation?
Based on the above comments, it looks like there's enough room for "interpretation" of the language in the Utah Enabling Act to keep lots of lawyers employed - and blog posters busy - for a long time :-)
That was my point Jim. While personally I think the Utah case for the TPLA is weak (it over reaches especially in remedy), it isn't the slam dunk portrayed in the subject article.
Interesting posts. I am reminded of some of the experience I had being involved in litigation issues with both governmental and private sector entities. The first rule was" 90% of us demanding justice, should be on our hands and knees begging for mercy". "What we think the law is and what it is" is complicated at best. I am not an attorney so cannot speak on this issue with much creditability. But what certain political opportunists are asking for in Utah and other sage rebellion states appears to be out in foul territory . To many good people, Republican and Democratic, etc. worked to hard to establish the public land for the reasons Gary, Alfred and others have pointed out, lets not turn the clock back.
If this were ever to go to the Supreme Court, Utah would simply lose. There is no "interpretation" here on which they could win--and they know it. They are simply playing to their local constituencies, many of which hate the public lands, that is, until Uncle Sam starts passing out free dollars again, when all of this will subside.
Bill Clinton pulled that trick during his presidency--awarding federal coal lands to the state of Utah (about 185,000 acres) for having established the Grand Staircase-Escalante National Monument. As every child knows, when it cries its parent is forced to listen. Clinton was always happy to listen. Remember that in 2016.
Go back in American history and read the cries for aid that came from practically every western territory. "We are here in ye howling wilderness fighting off Indians and bears!" Send help! Build us a fort with a company of regulars! We are advancing civilization while you lazy Easterners gobble up all the benefits!"
The West just can't stop crying to its parents: "We did it all by ourselves!" I love it because it is so predictable. That part of American history has never changed. How do we become millionaires and billionaires? We speculate in vacant land! Who has the most? Uncle Sam. Now, if he would just get out of the way, I could be the next Donald Trump. I could build the next resort complex in Utah, complete with 85 golf courses, as in Palm Springs.
It's America. It's in our blood. I don't fault anyone for trying, but really, at some point we'll have to stop, no matter what the Constitution "says." And it just doesn't say--however the states try to spin it--that the Union is less than they.
I agree Alfred, thank you.
Slc72. Very good points. Thank you.
Sad to say, but now that it appears the GOP has a majority in both houses, that they'll be more likely to turn over the Federal lands under discussion to the individual states. One small encouragement I have is that in Rev. 11:18 says in part "... to bring to ruin those ruining the earth.” The folks "responsible" for bringing about the ruin of the earth will be held accountable for their actions.
Tree - while I believe it would be appropriate to turn over some lands, I hope that is one of the lower items on the agenda. There are far more critical and fundamental issues that need to be addressed first.