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Legal scholars challenge underpinnings of Utah's public lands campaign

Published October 29, 2014 4:09 pm
This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

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.

"It takes time and energy from other efforts that could lead to success on these efforts, such as the Bishop process and land exchanges," Ruple said. "There are ways we can create a win-win. This isn't one of them."

The Stegner scholars have been watching the public land transfer movement build steam, with proposals surfacing in other state legislatures and spin-off legislation getting enacted in Utah.

"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 or not the state could manage the public land 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.

"This paper confirms that Utah's attempt to seize public lands is illegal and a massive waste of taxpayer resources," said David Garbett, staff attorney with the Southern Utah Wilderness Alliance. "The state should give up its misguided efforts to deprive Americans of our shared national heritage of public lands."

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 dispose of the 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."

Ruple also cited a historical context to explain why eastern states were treated differently than new states out west.

"It's geography and climate. When you move west of the 100th meridian, precipitation is much less reliable," he said. "It is hard to do the same kind of agriculture you could do to the east absent large-scale irrigation projects. We didn't see that from the federal government until the 1920s. It's a different world."

bmaffly@sltrib.com

 

 

 

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