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

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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.

 

 

Comments

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. 


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