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.