This week, Utah’s Commission for Stewardship of Public Lands will be presented a draft complaint seeking turnover of various federal lands to the State of Utah. Some Idaho legislators think Idaho should jump on the Utah bandwagon.
In Idaho, like Utah, over 60% of all land is in federal hands.
Back in 2012, the Utah Legislature and governor signed the Transfer of Public Lands Act. The measure gave the federal government until December 31, 2014 to transfer approximately 30 million acres to the State of Utah. The Utah effort targets Utah’s national forests and BLM lands for turnover. Excluded from the process are Utah’s national parks and property currently managed as wilderness.
The final decision, if any, to file the complaint rests with Utah Attorney General Sean Reyes who has not yet publicly announced a position.
The complaint is being drafted by a Louisiana law firm which had earlier been paid $900,000 for a legal analysis of the viability of such action. The cost of taking the matter to the U.S. Supreme Court is estimated to total about $14 million.
How viable are the claims to be asserted in the complaint?
This past week, I was able to hear a presentation to the Idaho Falls Rotary Club by Professor Robert Keiter, a constitutional law professor and director of the Wallace Stegner Center of Land, Resources, and the Environment at the University of Utah Law School (my alma mater).
Keiter argues that the legal basis for challenging federal land ownership is weak and faces substantial barriers. But, he does believe a viable path exists for western states to pursue their rights regarding public lands.
One of the barriers is that Utah, like most western states (including Idaho), was admitted to the Union with an explicit condition that its residents disclaimed any further interest in federal property. Keiter points out that the Utah Enabling Act, the statute passed by Congress making Utah a state, specifies:
That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States.
The Utah Constitution contains similar language, as does the Idaho Constitution.
The primary argument made by land transfer proponents is the Equal Footing Doctrine, ie. the idea that each state must be treated equally on admission to the Union. The point is that eastern states lack extensive federal lands whereas western states have extensive federal land ownership, thus making the states “unequal”.
Keiter believes this argument lacks merit based upon the applicable legal precedence. In particular, he cites to U.S. v. Gardner, a 1996 9th Circuit case out of Nevada, which states that the Equal Footing Doctrine “applies to political rights and sovereignty, not the economic characteristics of the states”. Political rights mean a republican form of government and equivalent congressional representation. Sovereignty refers to the ability of a state to pass laws for its citizenry. The Gardner court used this analysis to specify that varying amounts of public lands did not violate the doctrine because that is an economic characteristic not a political or sovereignty one.
Keiter argues overall that the Utah legal case is weak but Congress has the full ability to transfer lands through congressional acts under the U.S. Constitution’s Property Clause (Congress shall have the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”).
He notes that the U.S. Supreme Court interprets the clause as granting absolute authority to the Congress to transfer federal property. He suggests that if a state, like Utah, has a viable case for transfer of specific property, it should pursue the effort through the political process.
With the forthcoming draft complaint, Utah’s Attorney General will need to make a decision to file or not. If he does, pressure is likely to be brought for Idaho to join the effort. Some Idaho legislators back such a step.
Idaho Attorney General Lawrence Wasden’s office has already issued an opinion (view here) that closely tracks Professor Keiter’s. Will Idaho’s political leaders disregard the Attorney General on this issue and join Utah or pursue a different course?
With the forthcoming Utah complaint, the issue is likely to come to a head in the next few months.
As I’ve written before, I think Idaho should actively pursue land trades, particularly in respect to scattered school trust lands in Southern Idaho. I could see our congressional delegation proposing a swap of school trust lands for consolidated BLM property that has income potential, for instance near the Idaho National Laboratory or in the Magic or Treasure Valley areas. Such trades could generate income for Idaho’s schools and would have a greater chance of success than long-shot litigation.