HB 148 Utah’s Transfer of Public Lands Act

March 2012, Governor Herbert signed HB148, Utah’s Transfer of Public Lands Act, which demands that the United States extinguish title to Federal Lands and turn them over to the state to manage by the end of 2014. There are a number or resources on the internet to get more background on the ACT and find out what other western states are doing at www.americanlandscouncil.org.

This week on the County Seat we ask, What is the status of Transfer of Public Lands in Utah?

A number of organizations such as, National Association of Counties, The National Republican Committee, and a number of States have passed resolutions in favor of Transfer of Public Lands.

We also had an opportunity to talk to two professors from the University of Utah about the constitutional and political issues involved in a transfer of public lands.

Chad’s Reaction to the Discussion

I have followed the movement of the transfer of public lands since it first came up in a discussion with then candidate Gary Herbert in 2004 when he was running against John Huntsman for Governor. He thought the “equal footing” clause of the constitution deserved a review in the case of Utah. From there the Take Back Utah Movement and the success of those rallies emboldened the Utah Legislature to back a bill by Representative and Utah attorney Ken Ivory to test the constitutionality of our enabling act and the promise that all states were to be equal partners in the Union. From the day that bill was passed groups started to line up on one side of the issue or the other. Those who championed a change, and those (most of them with roots in Washington) who thought the notion preposterous.

Both sides of this argument contend that the language of the enabling act support their position. On one hand the act says that the state is to extinguish all title to the land, on the other hand it states clearly that the federal government is supposed to dispose of the land. That is why states to the east of Utah have little federal land compared to the western states, because the federal government did dispose of those lands. It should be pointed out however, that the government originally resisted doing so in the case of Indiana, Illinois, Missouri, Arkansas, Louisiana, Mississippi, Alabama and Florida and it took an act of congress to make it happen. True, most of the land in those states went directly to individuals via land sales or homesteading and not to the state, but the action of congress clearly acknowledged the obligation of the federal government to do so.

The big change came in 1976 with the passage of the Federal Lands Policy and Management Act. The mission on non designated federal land was changed from disposal to retention, the law reversed the default status of public land. If we were acquiring new territory and admitting new states into the union, I could see the enabling documents reflecting that change and for the most part it could be accepted. However, in this case a commitment was made prior to FLPMA so it raises the question: should it be honored.

As professor Chambliss pointed out that in the context of current federal law, the notion of disposal does not fit with the current view of federal power and supremacy over state law. However, if we are going to argue context, look at the context of the original framers of the constitution. They were very concerned about the ability for a state to be sovereign if the federal government is a major land owner in the state, hence the District of Columbia not being part of any state. They were obviously concerned enough about it through the admission of states in the lower 48 to keep that language as part of the enabling documents.

So the question really boils down to which prism do we peer through when we look at this situation. Do we view it from where we are today and what powers we have granted to the federal government (or as some would think abdicated to them) or do we look at it through the prism of when the solemn contract was made at the time of statehood.

Ken Ivory and a federalist law group have both analyzed the Transfer of public Land Act and contend there is a logical path of precedent that given a reasonable interpretation of the contract, constitution and case law would support the transfer. However, It has never actually been tested in court (the prior challenge for the states I named above was settled in congress). It would require the court linking together a variety of precedent setting decisions to make the case stick.

I think for the proponents who are now spread far and wide with 5 western states following Utah’s lead, and endorsements from the National Association of Counties and the National Republican Party they assume it is a done deal. That might be a little optimistic. However, the growing number of critics should not think that it is out of the question just because the federal agencies don’t think they have an obligation to move it along (we don’t have to, we’re the feds). I do however think that the current administration is taking this challenge seriously as they seem to be determined to create as many national monuments out west as they can. This would move land from the undesignated column to the designated column possibly taking those lands off the table for transfer.

This play is still very much in motion.

Just my thoughts. Your thoughts are welcome.