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
ECBUCK, you are a jewell! Refreshing to hear your reasoned posts in a world bent on decline. Rock ON!
No, the federal government did not "contractually agree" to sell off the public lands in the western states. Read Roy M. Robbins. What the federal government agreed to do was provide those lands under the Homestead Laws, until, in 1935, homesteading was finally brought to a close. However, one can still file a mining claim in Utah--or any other western state. The law of 1872 still holds in those cases, even on the national forests, which Gifford Pinchot once vehemently opposed.
The point is: The West did not make itself. It was rather made by the East, again, beginning with the common sacrifice of the Revolution. Who paid Napoleon for Louisiana? The East. Who bled for Texas? The East. Who conquered Mexico and "freed" the Rocky Mountains? The East. Who established California and paid for Alaska? The East. Now Utah wants to say it is "owed" something? You bet. A stiff kick in the you-know-what. Unfortunately, because this president and Congress are just as ignorant of American history, they indulge in enabling rather than leadership.
All of the prerequisites for making new states were guaranteed by the Ordinance of 1787, which itself predated the Constitution and amazingly survived. Then again, why not? It and the Ordinance of 1785 were brilliant pieces of legislation, providing for the orderly disposal of the public domain, although yes, western settlers did ask for needed reforms.
Those Congress granted, but not the right for any state to dictate the terms of nationhood. The Civil War then sealed the question. Once in the Union, you have no right to quit. Does Utah want to quit? Be my guest. Turn in your American flag tomorrow morning and fly one of those billboards you love so much. You sure make them obnoxious enough so every motorist is forced to look. But don't tell this American that you are more American than I. I know my history; I know where you came from. And without the sacrifice of all Americans, the state of Utah would not exist.
Section 3 of the Utah enabling act (with which the state agreed) stated that Utah forever disclaim all right and title to unappropriated land. How this can be construed as the Feds being contractually obligated to transfer the land to Utah, I will never know.
Section 6 details which lands the Feds will give Utah when they become a state.
Section 7 enumerates 100 further sections the Feds will give Utah for public buildings and such when it becomes a state.
Section 8 grants further lands from the Feds to the state for building universities or for sale to support the universities.
Section 9 states that if the Feds ever sell any of their land in Utah, that the Feds shall give Utah 5% of the proceeds.
Section 12 grants further amounts of Federal land to the state of Utah and then states: "The said State of Utah shall not be entitled to any further or other grants of land for any purpose than as expressly provided in this act; and the lands granted by this section shall be held, appropriated, and disposed of exclusively for the purposes herein mentioned, in such manner as the Legislature of the State may provide. "
So, the Utah Enabling Act states that Utah forever gives up claims to Federal lands except the land the Feds gave or granted to the state. And, the Utah enabling act, with which Utah agreed, states that Utah is not entitled to any additional land not listed in this act.
So, now Utah is demanding the Feds transfer/extinguish title to a lot of land. Land that was never Utah's. Because they want it. There really is no constitutional question here.
The case of Fort Leavenworth v Lowe is a red herring. Kansas ceded land to the Federal Government. When it ceded the land, it retained the right of taxation. This has no relation to the Utah issue, as Utah never owned the land in question; it has always been held by the federal government.
Oh I get it Alfred, I agreed (actually pointed it out first) that there was no US Constitutional requirement for the government to part with the lands though the jurisdiction changes upon being convertion to a state.
However, the basis of HR 148 is not that the lands belong to Utah because of a US Constitutional requirement but because it was contractually agreed upon in the Utah enabling act. The Feds have the right to do what they want with their land ownership but if they contractually agree to sell it, that is what they have to do regardless of Article IV or the Supremecy Clause.
This is why I like this site and people like you Alfred. It does bring up important issues and force people to listen to others' arguments and do deeper investigation. Under (because of) Article IV, I didn't see much substantiation of a claim to title of the land by the State of Utah. Looking deeper into the language of the Utah enabling act (sorry Virginia's higher education didn't teach the Utah Constitution) I see a stronger (but not rock solid) case.
Did the US Government actually contractually agree to sell the land? That certainly is up for debate. Was there a required time frame? Is the remedy of the contract breech seizure? All open questions. However, the case is not the slam dunk implied by the subject article and can't be substantiated at all by the reasons given - i.e the Property Clause and the Supremecy Clause
Alfred,
Ordered Robbins book this AM. Will be a little while till it gets here and I have a chance to read. In the meantime, can you share his argument as to why Article X Secton 3 doesn't create that obligation?
Based on the above comments, it looks like there's enough room for "interpretation" of the language in the Utah Enabling Act to keep lots of lawyers employed - and blog posters busy - for a long time :-)
It doesn't say "if" it says "shall" . That is the cruxed of their argument.
BTW - I see that as section 3 in Article X. I don't see that in any Section 9.
[Further edit] - I was reading from the Constitution rather than the Enabling Act. Sections are different but the language is the same "shall" not "if".
That was my point Jim. While personally I think the Utah case for the TPLA is weak (it over reaches especially in remedy), it isn't the slam dunk portrayed in the subject article.