PUBLIC LANDS: Utah takeover bid 'legally flawed' -- scholars
Phil Taylor, E&E reporter
E&E PM: Wednesday, October 29, 2014
Utah's bid to take over roughly 30 million acres of federal lands is fatally flawed because it flouts the U.S. Constitution and Supreme Court rulings giving Congress the final say over use of the federal estate, according to a legal review released today by two Utah scholars.
The white paper authored by professor Robert Keiter and research associate John Ruple of the University of Utah comes as conservative activists across the West prod policymakers to wrest lands from the U.S. government, particularly those owned by the Bureau of Land Management and Forest Service.
Utah Gov. Gary Herbert (R) in March 2012 signed the Transfer of Public Lands Act that set a Dec. 31, 2014, deadline for the U.S. to turn over its lands.
"While we recognize that some are dissatisfied with the state of federal land management, the legally flawed TPLA is the wrong tool to address those concerns," said a statement by Keiter and Ruple. "Unfortunately, misplaced efforts like the TPLA get in the way of collaborative efforts, and in so doing, aggravate tensions rather than foster solutions."
Keiter is also on the board of the National Parks Conservation Association, a conservation group that opposes transferring lands to Utah.
The paper also takes aim at the rhetoric by proponents of Utah's bill that the federal government must "give back" lands it took from states.
The federal government obtained land via treaties with foreign powers, notably the Louisiana Purchase, the Oregon Compromise and the Treaty of Guadalupe Hidalgo, the white paper notes. Over the years, the government granted roughly 70 million acres of lands to 11 Western states -- including 7.5 million to Utah -- while conveying 959 million acres directly to settlers, miners, railroads and other private interests.
"Federal ownership of the West came first, and states cannot demand that the federal government 'give back' that which never belonged to them," the white paper says.
In 1976, Congress passed the Federal Land Policy and Management Act stating that the roughly 600 million acres of remaining federal lands would be retained in public ownership unless their disposal was in the nation's interest.
Backers of the Utah land transfer bill say the federal government promised to dispose of federal lands in the state's 1894 Enabling Act. They point to language stating that public lands in Utah "shall be sold" and that title of public lands "shall have been extinguished."
But the white paper argued the meaning of "shall" was different in the act's context. The act created no obligation for the federal government to dispose of federal lands, nor an obligation to sell all of them.
Moreover, the paper notes that the Constitution gave Congress the authority to "dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States," and that Utah and other Western states accepted the Constitution as the "supreme law of the land."
"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,'" the paper says.
Other analyses of Utah's Transfer of Public Lands Act have come to different conclusions.
A review in January 2013 by Donald Kochan of the conservative Federalist Society, which promotes the "separation of governmental powers," argued that the legal case for the Utah law "should not be quickly dismissed."
"At the very least, there are open legal questions involved in the TPLA that have never received definitive resolution in the courts," the review says. "Opposition statements made so far regarding the law may reflect an over-confidence in its unconstitutionality and an overstatement of the strength of precedent."
While most legal scholars have dismissed Utah's claims, that has not stopped several Western politicians from running on platforms to claim federal lands in Utah, Colorado, Idaho and Oregon, among other states.
While the outcome of Tuesday's midterm elections won't tip the legal scales for transferring federal lands, it could drive public dialogue over its merits (Greenwire, Oct. 29).
