Legislature • Scholars question claim that government broke contract.
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Utah lawmakers are again making noise about taking over federal lands in the state, with one proposal calling for a court battle to control almost all such lands.
Rep. Ken Sumsion, R-American Fork, has introduced a bill that would direct the attorney general to file for declaratory judgment in U.S. District Court on grounds that Congress promised in the 1894 Utah Enabling Act that it would dispose of its lands in the state and give Utah schools 5 percent of the proceeds.
"We had a contract," Sumsion said of the law that ushered in Utah's statehood. "It's been violated. We're looking for a remedy."
Sumsion's claims that there was a contract or, especially, that there's any legal remedy are disputed by constitutional scholars, who expect the state to make no headway in court. But the lawmaker said the time may be right to challenge those assumptions, with a U.S. Supreme Court that tends to swing more conservative than in decades past and is perhaps friendlier to states' rights.
"It's more plausible we could get a favorable ruling [now]," he said.
Sumsion, a gubernatorial candidate, would not favor selling Utah's five national parks, but instead would make them state parks. He said other lands, such as the Grand Staircase-Escalante National Monument, contain billions of dollars in mineral deposits that the state could exploit.
His bill, HB91, commits $1 million of a $3 million constitutional defense fund that the Legislature set aside two years ago, when it approved a similar bill allowing condemnation of federal lands to enable access to and development of state school trust lands. That bill has not yet spawned action, and Sumsion's proposal leaves open the possibility that more of the fund could go to his effort.
Rep. Ken Ivory, R-West Jordan, also has said he plans a bill pursuing local control of federal lands, though he has not introduced it.
Legislative Republicans have complained that, given the federal government's failure to sell its lands, the state did not come into the Union on a constitutionally required "equal footing" with others, especially Eastern states that are largely private land with larger tax bases.
Bob Keiter, a University of Utah law professor and director of the school's Wallace Stegner Center for Land, Resources and the Environment, said courts interpreting the Constitution's equal-footing requirement have ruled that it applies to political sovereignty two senators per state, for instance and not to lands.
"The proponents of this sort of thing tend to take a phrase here and there out of context," Keiter said. That's true of their reading of the Enabling Act, he added.
The pertinent part of the act Section 9 grants the state 5 percent of proceeds from lands "which shall be sold by the United States subsequent to the admission of said State into the Union."
Sumsion and others say the phrase represents a legal commitment to sell all of its holdings the forests and deserts, the canyons that ultimately became national parks except for military bases and American Indian reservations. Such sales effectively ended in 1976, when Congress set up the Bureau of Land Management to care for the holdings.
Keiter reads it quite differently, as a simple financial commitment from whichever lands the government may decide to sell. The Supreme Court has ruled numerous times that Congress has complete control of its lands under the Constitution's property clause, he said, and the Enabling Act's grants for schools and school trusts were all Congress gave up at statehood. There's no court precedent, he added, suggesting a change in judicial philosophy is brewing.
"The bottom line is it's an enabling act," Keiter said, "and Congress has the authority both in terms of admission of the state and, more important, in management of the public lands to basically do whatever it wants to with them."
Sumsion has announced a conservative intraparty challenge to Republican Gov. Gary Herbert who also derided federal control in his State of the State speech and some view his lands effort as partly a political move.
"Given the nature of the [Republican] caucus," Utah State University political scientist Michael Lyons said of the GOP's preliminary nominating contest, "it makes sense for a challenger to the governor to try to build a rural-based constituency."
Like Keiter, though, Lyons reads the Utah Enabling Act as a prescription for school funding if not when the U.S. sells its lands.
Point of contention
Section 9, Utah Enabling Act:
"That five per centum of the proceeds of the sales of public lands lying within said State, which shall be sold by the United States subsequent to the admission of said State into the Union, after deducting all the expenses incident to the same, shall be paid to the said State, to be used as a permanent fund, the interest of which only shall be expended for the support of the common schools within said State."