O-SenseWhether Idaho has a right to take over federal lands within Idaho continues to be a point of contention in the Idaho Legislature.
Last week, the Idaho House by a 53-14 vote approved HB 582, the “Idaho Multiple Use Sustained Yield Act”, to set up a management framework if federal lands are transferred to the State of Idaho. This measure is sponsored by Rep. Boyle (R-Midvale) and states:
LEGISLATIVE INTENT. The transfer of certain federally held public lands to the state of Idaho would fulfill the promise made in the U.S. constitution, the Idaho constitution, the Idaho admissions act and congressional acts under the equal footing doctrine. The equal footing doctrine requires that any new state enter the union with all the same rights as the original thirteen states.
. . .
Congress has not fulfilled its contractual obligation in the Idaho admission act to bring Idaho into full statehood. This act of the Idaho legislature is laying out a path to the citizens of Idaho as to how those lands will be managed once the contract is fulfilled.
I have written before that I don’t think the legal argument for forcing a turnover of federal lands is very strong. You can view my previous take here.
But, I am not alone in questioning the legal basis. The Idaho Attorney General’s Office has now released an opinion on HB 582 drafted by Deputy Attorney General Steven W. Strack that is pretty devastating (you can view full opinion here).
That opinion notes:
House Bill 582 asserts that among the rights each state possesses as a result of its admission to the Union on an"equal footing" is the right to"the grant of all lands held in trust by the federal government for the states once they are granted statehood." This premise has no support in the law. Prior to adoption of the Constitution, the original 13 states granted their western lands to the United States "as a common fund for the use and benefit of such of the United American States....25 J. Continental Cong. 561 (1783)(resolution of Virginia Legislature). . . Thus, as new states were admitted, the United States retained title to federal lands within the newly admitted state for the benefit of the United States as a whole, not for the benefit of the individual states in which the lands resided.
. . .
Courts have concluded, however, that such disparity [referring to the fact that 62% of Idaho is federally owned] does not violate the equal footing doctrine. In United States v. Gardner, the court concluded that the differing amounts of federal lands" may cause economic differences between the states [but] the purpose of the Equal Footing Doctrine is not to eradicate all diversity among states but rather to establish equality among the states with regards to political standing and sovereignty." United States v. Gardner, 107 F.3d 1314,1319 (9th Cir. 1997). The court thus concluded the equal footing doctrine does not apply "to economic or physical characteristics of the states." Id.
Still, some Idaho legislators and commentators have encouraged Idaho to join Utah in a $14 million lawsuit to sue the federal government for public lands. But, the Utah effort is losing steam. A key Utah supporter, State Rep. Mike Noel (R-Kanab), now says that the chances of success are “slim” since the death of Justice Antonin Scalia. He believes that the likely result would be, at best, an unhelpful 4-4 tie and that either Hillary Clinton or Donald Trump would likely appoint another Supreme Court justice who wouldn’t be supportive. You can read a Salt Lake Tribune story on Rep. Noel’s current take on the issue here.
If the idea of suing the federal government for federal lands is now on life support, what might be the alternative?
One might be Rep. Raul Labrador’s idea to ask Congress to test the thesis that state governments can manage federal land more efficiently. I can imagine Idaho taking on tracts of BLM land in a region or a single national forest with tight restrictions on use and a flat-out prohibition on the sale of such to private interests. That is an idea worth pursing.
Another approach with some probability of success might be to consolidate some of Idaho’s scattered school trust lands by trading them for equivalent federal property. Such has been done previously, most particularly the swap of scattered Idaho parcels in the national forests for land in North Idaho that is now used to grow trees for pulp. Those consolidated properties generate millions for Idaho’s schools each year.
Another possibility I could see happening would be to trade out scattered school trust lands surrounded by BLM property in Southern Idaho for BLM land near the Idaho National Laboratory. Momentum is building to place 12 small modular nuclear reactors in that area. What if those reactors were on Idaho state land, thus generating rent revenues for Idaho’s schools?
Such an effort would come down to the value of the land Idaho would offer for trade compared to the federal land acquired and would be dependent on the relative influence of Idaho’s congressional delegation. I think that Sen. Crapo, Sen. Risch, Rep. Simpson and Rep. Labrador are up to the task.
Such an approach would have a far higher probability of success than a flawed, expensive and likely ultimately unsuccessful lawsuit.
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. .
