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
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.
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.
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.
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.
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.