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In the 1780s, Maryland was worried about its neighbors as America's newly independent states pondered how to bind 13 former British colonies into a single nation.
Virginia and Pennsylvania envisioned their borders extending far into "unoccupied" land to the west, and Maryland feared that its influence would wane should those states gain large empires. It insisted these lands be reserved for future states and sold to pay down a massive war debt and fund ongoing government operations.
The historic compromise to resolve this impasse led to the principles Utah is now invoking as it builds a legal case to demand that the federal government hand over title to 31 million acres of public lands.
To persuade Maryland's leaders to sign the Articles of Confederation, other states agreed that all future states would join the union on "equal footing" with the original 13, making the young nation a federal republic of sovereigns, according to the legal analysis recently unveiled by consultants hired by the Utah Commission for the Stewardship of Public Lands.
However, by retaining much of the land in Utah and other Western states, the consultants argue, the federal government has denied these newcomers to the union full benefits of true statehood.
"On the questions of whether the federal government has the constitutional power to near permanently retain over 66 percent of land within the borders of the state of Utah, it is our conclusion that power does not exist," George Wentz, a partner with the New Orleans law firm Davillier Group, told the commission last month.
Wentz and his team of constitutional scholars recommended Utah file suit with the U.S. Supreme Court aimed at fulfilling the goals of HB148, the 2012 law ordering the federal government to hand over most of the Utah land administered by the Bureau of Land Management and U.S. Forest Service.
But according to other legal minds, Wentz's case, outlined in a 146-page report, is full of holes that will likely cause hemorrhages in the estimated $14 million cost of bringing such a case.
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Acquiring the arid West • University of Utah law professors John Ruple and Bob Keiter conclude the state's legal consultants ignore the historical context of western expansion and decades of legal precedents.
"The Supreme Court has made clear that the Property Clause [of the U.S. Constitution] grants Congress an 'absolute right' to decide upon the disposition of federal land and no 'State legislation can interfere with this right or embarrass its exercise,'" Keiter and Ruple wrote in an October 2014 white paper. In upholding the National Forest System, the court concluded "the federal government could retain public lands for broad national benefits, and that it could do so indefinitely."
The territory won following the 1848 war with Mexico — much of New Mexico, Arizona, California, Utah, Nevada and Colorado — was not amenable to agriculture, unlike the rolling self-watered plains east of the 104th Meridian.
Land "didn't belong to the states first, because there were no states," Ruple said. "This notion that Utah is the same as Maryland and Connecticut is historically suspect."
Settlement out West required massive federal subsidies in the form of land giveaways, roads and rail, irrigation and, later, fire suppression. In 1905, four decades after passage of the Homestead Act, 418 million acres remained open for homesteading in 11 western states because it was too difficult to settle and develop.
"Outside of valleys with reliable snowmelt fed rivers, consistent year-around water sources were often unavailable, and even where rivers and streams existed, rugged topography and the cost of developing reservoirs and irrigation systems limited agricultural opportunities," the scholars wrote.
"The Homestead Act didn't work in Utah and Nevada, because you couldn't homestead without water. We didn't have good groundwater pumping until the 1930s," Ruple said.
Congress drafted legislation in 1932 to convey public lands to the states, but the bill died in the absence of Western support. These states feared losing mineral revenue and other funds shared by the federal government, while getting saddled with huge administrative costs should they acquire this public domain, according to Keiter and Ruple.
Given this history, they say, no Western state can credibly argue it has been denied equal footing simply because federal ownership of its public land has persisted.
In the 19th century, the federal government was already setting aside big tracts for national parks and forest reserves, so a policy retaining land was in motion before Utah joined the union in 1895.
And while Wentz's report challenges the legality of provisions in the 1976 Federal Lands Policy and Management Act, which codified land retention policies, Ruple noted that the federal government has continued to dispose of land since its passage. Between 1990 and 2010, 24 million federal acres have been transferred to state and private hands, according to Ruple.
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Debating the benefits of victory • Wentz's team, after convincing the public lands commission last month to hire it for additional services, is drafting a complaint and a confidential memo to Utah Attorney General Sean Reyes. The decision to pursue the case would be left to Reyes, although Republican lawmakers have made it clear they want to litigate and HB148 authorizes such a lawsuit.
No other Western state has enacted a land transfer demand, although Utah is urging others to join its legal crusade and established an "interstate compact" for them to join.
Wentz pegged Utah's legal tab at $13.8 million and has been careful to emphasize the outcome is anything but certain. He notes many groups will seek intervenor status and the government will devote extensive resources fighting back.
The sum includes a seven-member legal team working full time for six months at $1,750 an hour, plus retaining an attorney specializing in Supreme Court practice. Expert witnesses paid $300 an hour for testimony would cost $720,000, plus another $480,000 for consulting experts.
Transfer critics in the Legislature regard such spending an utter waste, noting Utah has an unhappy history of spending heavily on outside lawyers to wage dubious legal battles.
And Keiter and Ruple contend a legal victory for Utah could be a disaster for its citizens since it is unlikely the state would also get the rights to oil, gas and valuable minerals on the transferred lands. Without mineral revenues to cover the cost of administering the land, Utah would be forced to sell much of it, they argue.
The government did convey vast tracts to latecoming states in the 19th century. Utah was given 7.5 million acres — 13.8 percent of the land within its borders — in checkerboard-like sections to be managed to support schools. But leaders spent most of this endowment before reforms created the School and Institutional Trust Lands Administration in 1994 and stopped the bleeding.
For transfer critics, this history raises doubts about the state's ability to manage the public domain in the public interest.
But others see the $14 million legal bill as a worthwhile investment considering the stakes and potential rewards should Utah prevail. Wentz's team says federal land retention has prevented Utah from growing its population and developing economically to its full potential.
Two of the nation's fast growing states, Utah and Nevada, happen to be those with the highest percentages of their land under federal ownership. This growth, however, is largely occurring in established urban areas; many rural areas are contracting and local leaders allege federal land management thwarts economic development.
The U. scholars have so far released three white papers contesting the wisdom and legal reasoning behind land transfer. Their next paper will explore solutions to rural Westerners' unhappiness with federal oversight of so much of the land surrounding their communities.
Brian Maffly covers public lands for Salt Lake Tribune. Maffly can be reached at bmaffly@sltrib.com or 801-257-8713. Twitter: @brianmaffly