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The Dec. 31 deadline Utah set for the federal government to turn over millions of acres of public lands to the state will come and go with no transfer of ownership, no solid plan of action and no lawsuit.
Assistant Utah Attorney General Tony Rampton on Tuesday told the state's Commission on Federalism that it would be unwise to press forward with litigation, or even to push a specific proposal because there are too many unanswered questions and lots of fact-finding and coalition-building to be done.
Even Rep. Ken Ivory, R-West Jordan, the main force behind Utah's Transfer of Public Lands Act (HB148), acknowledged that the Dec. 31 deadline was more a goal than a line in the sand.
"I don't think anyone expects on Jan. 1, 2015, there's going to be a lawsuit filed," he said. "But look how far we've come in two years" from a beginning when Utah's claims were "being dismissed absolutely out of hand." He pointed to several states passing resolutions exerting claims on public lands, multi-state summits and law review articles backing the idea that Utah with more than 60 percent of its area underfederal control has a legitimate grievance.
Rampton, who heads up the attorney general's legal review of the issue, says there is a case to be made but it is a long shot.
One hurdle Utah would have to overcome is winning the argument that the promise made by the federal government in the state's enabling clause to dispose of federal lands and share the proceeds with Utah trumps the U.S. Constitution's broad grant of discretion to Congress over federal property. The other hurdle would be devising an equitable remedy that had a chance of being accepted by the U.S. Supreme Court.
"In my mind, I can identify five votes on that court that would hear this states' rights argument," Rampton said, naming Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito. "All of [them], I believe, would give fair hearing to our argument that the property clause cannot be used to trump a state enabling clause. That is a tough, tough case, and that is one of several hurdles. I'm not suggesting this would be an easy case, quite to the contrary. ... Certainly I don't think it's a case that you want to put all of your eggs in that basket."
In fact, Rampton recommended that the state pursue a multi-pronged effort of fact-gathering, negotiation and finding common ground with other states for the purpose of exploring realistic political solutions.
A key to Utah's prospects for success, he said, is a state study, due for completion in November, assessing the economic realities of a land transfer from potential development revenues to the costs of managing vast tracts.
"It's going to answer a lot of questions about what makes sense. It will point out not only the state's problems with the status quo but also the federal government's problems with the status quo and local governments' problems with the status quo. Once you've got that information in hand you can realistically start crafting proposals that make sense for all levels of government."
Rampton said if Utah moves carefully in coming up with a fact-based and practical solution that could get buy-in from varied land interests from environmentalists to miners to ranchers it could avoid the failure that occurred with a similar effort during the so-called Sagebrush Rebellion of the 1980s.
The leaders of that movement didn't cultivate support from the various user groups "so what you had was natural constituencies that started to desert the ship," Rampton said. "It's the same thing that happened in Arizona in the last year when Gov. [Jan] Brewer vetoed the Arizona statute [modeled after Utah's land-transfer act] on the grounds that the grazing interests came to her and said 'don't do this.' "
He also said mustering support from a coalition of states as is being attempted by Ivory's American Lands Council is crucial.
"Obviously, if it's just the state of Utah, we're just 'those nuts out here in Utah, here they go again.' We're not, but people can't even say that if we're joined by Idaho and Montana and Wyoming and Colorado and New Mexico and Nevada and Arizona."
Who's on the commission?
The seven-member Commission on Federalism is headed by Senate President Wayne Niederhauser, R-Sandy, and House Speaker Becky Lockhart, R-Provo. It has five Republicans and two Democrats.