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Grab of U.S. land a get-rich-quick scheme

Published March 3, 2012 1:01 am
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

As in past years, this general session of the Legislature has produced several bills aimed at taking control of land owned by the United States and transferring it to Utah state ownership. The bill sponsors assert that if Utah were to take over this federal land with the authority to drill it, mine it, and sell it off to corporations, enormous amounts of money to fund public and higher education would appear.

Unfortunately, this quixotic endeavor has many problems. The United States is not likely to go along with Utah's efforts to wrest control of the nationally owned real estate within Utah's borders. Success in this venture likely will come only at the hands of sympathetic federal court judges and will undoubtedly require U.S. Supreme Court approval.

Supporters of Utah's quest assert that public lands litigation carries the distinct possibility, even the likelihood, of victory. And with that victory they believe our ability to fund — at much higher levels — state programs, including public and higher education, will be guaranteed.

So how likely is it that the federal courts will allow us to take over national forests, BLM lands and even national parks? Not very. Our Utah Constitution states that the "people inhabiting this State do affirm and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries hereof . ..." Article III, Sec. 2.

The founding fathers of Utah gave up any claim to federal lands as a condition for becoming a state. Granted, there is some language in the "enabling act" (passed by Congress to allow Utah to become a state) which suggests the United States may be required to sell off the lands it owns within Utah, but that language is far from clear.

In addition, there is very little legal precedent for interpreting that language in a way that would justify the radical conclusion that the United States, against its will, must transfer all property it holds within the state to Utah. The Legislature's own Office of Legislative Research & General Counsel has reviewed the legal theories the bill sponsors advance and has advised us that they are highly likely to be unconstitutional.

Significant question also exists as to whether Utah has the capacity or discipline to manage those federal lands in a way that benefits not just the immediate self-interest of a few private landowners or corporations, but takes into account more long-term considerations. It's not hard to imagine that the short-term payoff of increased mining, drilling or development will often be more than offset by permanent damage to lands we want our children and grandchildren to be able to enjoy.

But we must keep in mind the extensive revenue we are already receiving from these lands. Utah enjoys approximately $1.7 billion fed to our economy every year through tourism related to land owned by the U.S., not to mention millions more in indirect tourism revenue and fees Utah is paid by the U.S. for the lands. Wise stewardship of our lands requires dispassion and a far-reaching perspective. The prospect of dollars today clouds the clear vision necessary to bless future generations.

But my colleagues are undeterred. They are willing to invest literally millions of dollars pursuing legal theories that will take years, perhaps even decades, for federal courts to resolve. Meanwhile, the Legislature refuses to make meaningful progress in providing greater resources to our public and higher education systems.

While these weak legal arguments wend their way through the judicial process, our children will grow up before our eyes, deprived of support as they move from kindergarten through high school, as we parents eye ever-increasing tuition rates at our state universities and colleges. Our children, our greatest hope for the future, will continue to miss out on the education they need, and our state's future economic development will suffer as we lose the educated workforce demanded by modern companies. Wishful thinking is no substitute for providing our children the resources they need in our neighborhood schools.

Let's call these bills what they are: "get rich quick" schemes with little sound legal analysis to back them up. Common sense should tell us not to place bets on these flights of legal fancy.

Brian King, an attorney, represents Salt Lake City's District 28 in the Utah House of Representatives.






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