O-SenseIn Idaho, only 36.2 percent of all land is owned by private parties or the State of Idaho.
A full 63.8% is in federal hands, most managed by the BLM or the U.S. Forest Service. That overwhelming federal ownership has led to cries for Idaho to “take back” those federal lands through litigation or other means.
Last week, the State of Utah decided to move closer to litigation to obtain federal lands in Utah. Utah is similar to Idaho in terms of the percentage of federal land ownership.
The Utah Commission for the Stewardship of Public Lands, a committee of the Utah Legislature, on Wednesday asked a group of attorneys, including Professor Richard Seamon of the University of Idaho College of Law, to draft a complaint to attempt to obtain 31 million Utah acres from the federal government. The triggering event was the release of a report on the issue by the same group of attorneys.
The complaint, even if drafted, won’t be automatically filed. The ultimate decision will be made by Utah Attorney General Sean Reyes.
The cost of the effort? According to the attorney advocates, taking the issue all the way to the U.S. Supreme Court will run an estimated $14 million in taxpayer money.
That is a staggering sum for state-funded litigation. Idaho’s own constitutional defense fund has put out a relatively paltry $2.1 million over the two decades of its existence. Apparently, key Utah legislators are willing to roll the dice in a much bigger way.
The Utah legal consultants believe Utah should advance four primary legal theories: 1) continued federal ownership violates the constitution requirement for equal sovereignty, 2) massive federal ownership prevented Utah from entering the union on equal footing with other states, 3) under the Utah enabling act (which set forth the requirements for Utah to enter the Union), the federal government was bound to transfer the federal lands and 4) a claim that the federal government is limited under the Property clause of the U.S. Constitution from owning the lands it does.
But, do these theories have much merit?
Bob Kieter, the director of the University of Utah Law School’s (my alma mater) Wallace Stegner Center for Land, Resources and the Environment, told the Salt Lake Tribune: "It is unfortunate that the state appears committed to a legal strategy that has little chance of success . . . .”
I concur with Professor Kieter’s analysis. While interesting, these theories, in my estimation, appear to lack obvious merit under the applicable U.S. Supreme Court decisions.
A key problem is that Utah (and Idaho) disclaimed any interest in federal lands when it entered the United States as a state. The Idaho disclaimer is pretty specific. Article XXI, Sec. 19 of the Idaho Constitution states that “the people of the state of Idaho do agree and declare that we forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof.”
The idea of Idaho challenging federal land ownership has been around for decades. But, Idaho has a pretty solid analysis of the issue from an Idaho perspective that was released earlier this year.
In 2013, the Idaho Legislature passed a resolution authorizing the creation of the Public Lands Interim Committee to study the issue. Chaired by Boise State Sen. Chuck Winder, this study committee released a report in January 2015 exploring the ability, costs and benefits of Idaho seeking to obtain title to federal lands in Idaho. The report can be found here.
The report pointed out the obvious conflicts between those who want to put federal public lands to economic use by cutting down timber or mining and those who want to push the recreational benefits of such lands.
The Policy Analysis Group in the College of Natural Resources at the University of Idaho was asked to prepare an overall economic analysis of a potential transfer of federal lands to the State of Idaho. The outcomes were not rosy. The key paragraph was the following:
In total, after subtracting all costs from timber net income, the proposed transfer of
15.8 million acres of land administered by the Forest Service, the BLM, and the National
Wildlife Refuge System would cause the State to (a) lose $111 million per year under the low-end timber receipts scenario, (b) lose $60 million per year under the medium scenario, or (c) profit by $24 million per year under the high-end scenario.
The most interesting part of the report was its recommendation on litigation with U.S. government on the issue:
The Committee recommends against filing litigation against the federal government at this time. It is unclear whether Utah will pursue litigation given that the United States has not met Utah’s demands to transfer federal lands to the state. Given the similarities in the state enabling acts and Idaho’s Constitution, Idaho should let Utah take the lead in litigation of the issues and assess later whether litigation is a good option.
The Idaho report also raises grave doubts of the potential success of any legal action, in particular noting that Idaho Deputy Attorney General Steve Stack “was unable to find any indication in the records that the delegates to Idaho’s constitutional convention considered federal reservations or federal grants of land in Idaho to be subject to a contract or ‘compact’ for disposal of federal lands.”
Will Idaho jump on the Utah bandwagon? The filing of the Utah action will create a big temptation to jump on board.
But, before doing so, it would be worthwhile to re-read the report put out by Idaho’s own Public Lands Interim Committee, take a deep breath --- and let Utah proceed on its own.
In the meantime, it may be worthwhile to push Idaho’s congressional delegation for federal legislation to encourage locally-focused management of federal lands in Idaho. The Idaho report specifically pushed that option in its findings. Such approach will not cost Idaho taxpayers big bucks and has a higher probability of success than Utah’s long shot approach.
Steve Taggart is an Idaho Falls attorney specializing in bankruptcy (www.MaynesTaggart.com). He has an extensive background in politics and public policy. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .
