University of Utah legal scholars released a white paper Wednesday concluding the state has no legal basis to demand the federal government turn over title to public lands.
Some state lawmakers have clamored for the state to sue after passing a law in 2012 demanding the feds give the state 30 million acres by Dec. 31.
Suing would not only be a waste of money, but also set back efforts to resolve conflicts over public land management, according to John Ruple, a research fellow with the U. law school’s Wallace Stegner Center for Land, Resources and the Environment.
"We recognize there are legitimate questions about how federal lands are managed and there is room for disagreement, but demanding the federal government give those lands to the state is legally untenable," said Ruple, who co-wrote the paper with the center’s director, law professor Robert Keiter. But the state’s legal point man on public lands, Assistant Attorney General Anthony Rampton, contends the U. scholars are hardly raising any arguments. State lawyers have examined arguments raised by Keiter and Ruple. "We haven’t seen a careful critique of it yet," Ruple said. "It had gone unchallenged too long and it’s time for people to take a careful look at the arguments that underpin it."
He cautioned that the analysis doesn’t explore whether the state could manage the public lands better.
But environmental groups cited the Stegner scholars’ findings in calling on Utah leaders to rethink their obsession with land transfer, which they say could lead to a fiscal train wreck if the state doesn’t sell the land to cover the cost of managing it. Led by Rep. Ken Ivory, R-West Jordan, many state officials have long argued the U.S. Forest Service and the Bureau of Land Management are mismanaging their holdings to the detriment of both rural communities and the environment.
Ivory, who did not immediately return an e-mail request for comment, has argued that the federal government has reneged on a "promise" to Western states to sell public land within their borders.
But, citing the U.S. Supreme Court, Ruple says the Constitution’s Property Clause clearly "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.’"
"Congress has discretion to say they want to hand over title, but they don’t have a legal obligation. That’s a very different question," Ruple said. The "Public Lands Transfer Act is putting a square peg in a round hole."
Moveover, he noted, the Utah Enabling Act, which led to statehood in 1896, required residents of the new state to "forever disclaim all right and title to the unappropriated public lands lying within the boundaries." Rampton believes a careful reading of various
states’ enabling acts contain provisions that support the notion that
the federal government would give up lands. "There is no dispute that when Utah was
admitted to the union in 1896, federal policy regarding public lands was
that they were to be disposed of," Rampton said. "The federal
government and the states, particularly in the West, recognized that the
states would be limited in the ability to derive revenue from these
lands. It was understood that over time, the federal governement would
dispose of these lands."...
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There are "white papers", but more credible are peer-reviewed law review articles. In a piece last year in the BYU Law Review, Chapman University law professor Donald J Kochan wrote:
In the end, there
is a credible case that rules of construction favor an interpretation of the Utah Enabling Act that
includes some form of a duty to dispose on the part of the federal government.
At a minimum, the legal arguments in favor of
the TPLA are serious and, if taken seriously, the TPLA presents an opportunity for further
clarification of public lands law and the relationship between the states and
the federal government regarding those lands. Moreover, other states are exploring similar
avenues to assert their claims vis-à-vis the
federal government and are in various stages of developing land transfer strategies that will model or
learn from the TPLA. That fact further underscores
the need for a renewed serious and informed legal discussion on the issues
related to disposal obligations of the federal government.
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