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Legal View: Utah Has No Basis To Order Federal Government To Turn Public Lands Over To The State


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.




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:

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;"

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