Opinionated @ CFE

The Federal Lands Fight is Worth It

Feb
23

A lot of people are saying that the current efforts to bring federal lands back to state control are misguided. What’s truly misguided is thinking that this isn’t a fight worth picking. The land in question is worth several billion dollars in one-time sales and hundreds of millions of dollars in on-going revenues. Even if the state only manages to get a settlement for better terms from the feds, it is likely to be worth much more than the estimated one-time cost of $3M to pick the fight. Yes, it’s wrapped up in a right-leaning 10th Amendment veneer, but the strategy is sound.

PS I’ve heard exactly zero valid arguments for why federal control is better than state or local control. Almost the only thing I hear is the same old FUD that we’d end up with a barren wasteland after clear-cut logging and strip-mining every one of those acres. You know, just like all of the eastern states that own their land. (Oh wait…)

9 Responses to The Federal Lands Fight is Worth It

  1. The problem with this is that it assumes there is some merit (i.e. chance of success) to the lawsuit. I haven’t looked at the issue closely enough to say if there is or not, but it strikes me that the odds are heavily against Utah.

    And if the suit is clearly not meritorious, then spending $3M (think opportunity cost here, perhaps in terms of education) in pursuit of fanciful billions is no better than some judge spending, say, $100K in pursuit of $60M+ from a dry cleaner losing a pair of pants.

    http://en.wikipedia.org/wiki/Pearson_v._Chung

    Again, I’ll acknowledge my ignorance of the law governing this case, but I suspect if you really want to fight the federal lands battle, there are better places to put $3M than into a lawsuit that (I suspect) has little to no chance of getting anywhere…

  2. “I’ve heard exactly zero valid arguments for why federal control is better than state or local control. “

    Better… well likely arguments either way or subjective to the political leanings of the person making the argument.

    But beyond that to the legal position I would think that The Federal properties and Territories Clause, and The Supremacy Clause of the constitution would set the ground rules for how this will play out. And frankly Utah doesn’t have a lot of room to stand given prior court rulings.

    Actually I am more curious where the Legislature got the money to fight more silly lawsuits, they steal from the school land fund again?, general fund this time?, god forbid from increases in revenue somewhere?

    • I have a different reading of Article IV, Section 3 to mean that a US territory (which has entirely different legal standing than a state) can’t attempt to claim ownership of the land claimed by the federal government. That makes sense as a state is a sovereign entity and member of the United States whereas a territory is not. States are far more than a mere political subdivision.

      As far as the Supremacy Clause, it is very careful to state that only laws pursuant to the Constitution are considered the supreme law of the land, and the creation of a state is about on-par with a treaty and considered superior to any federal law enacted. Federal law simply cannot overrule an enabling act.

  3. I’m very dubious for all these reasons. I read the Enabling Act http://en.wikisource.org/wiki/Utah_Enabling_Act,1894 and I think they’re making up history. I am not an expert in “implicit” promises made upon statehood, but the legislature has demonstrated numerous times that they are not experts either and frequently massage the facts to their liking.

    The bills http://le.utah.gov/~2012/bills/hbillint/hb0091s01.htm
    http://le.utah.gov/~2012/bills/hbillint/hcr001.htm
    http://le.utah.gov/~2012/bills/hbillint/hb0148.htm
    depend on their reading of Section 9, and I think they’re blowing smoke. They interpret it to mean the fed gov “shall” sell the lands as in must.

    Read Section 3, paragraph labeled Second for this:
    “Second. That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof;”

    Then read the one sentence of Section 9:
    SEC. 9. 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.

    It looks to me in context that it means any lands the fed gov does sell, they must give 5% to Utah schools, not that they “have” to sell them. I don’t think any precedent will support the leg’s reason.

    To Ronald Hunt’s concern, I can’t find in the 4 bills I’ve looked at where the $3 million is coming from, but I’m almost sure that when I heard a few minutes of Rep.’s Barrus and Ivory presentation to the State School Board last week that they intend it to be education money with supposed increased return as a result. I find it very unlikely.

    I think the concern is largely driven by rightwing ideology as you say Jesse rather than true concern for education funding, as the state’s effort has been in a documented decline since the 90’s. I think they’re trying to shift the blame in a politically popular way.

    And finally, I don’t think the Eastern states lack of fed lands that was a natural process is a good analogy to what would happen if suddenly the feds had to sell all or a large percentage of all the land in Utah. There is no precedent. The leg has a record of valuing energy/industry concerns highly while dismissing environmental ones. I think “barren wasteland” is hyperbole, but I would worry about losing one of the best features of Utah–the freedom to explore so much public land, even as I would be happy about the increased education funding. It’s not worth any and all costs, and I don’t have the ideological hatred of the fed gov that is driving this.

    I think they should sue for something more realistic like you suggested – sue for better regulations to make leasing quicker and cheaper while still allowing some voice for environmental concerns. The fed gov would have somewhere to compromise with that goal rather than just litigating the claim they ‘have’ to sell. That goal may make a settlement more unlikely…

    (Heck, after all that, maybe I’ll just copy this as a post on my blog.)

    • You can’t deny that there is a significant material difference between how western states have been treated in regards to privatization of public lands versus eastern and midwestern states. Even the date of admission doesn’t seem to have much bearing as Oklahoma and Hawaii, admitted long after most western states, still control much of their own land. Is it because mountain ranges are numerous and difficult to sell? Is it because of water issues? Nobody seems to be interested in justifying the disparity.

      In any event, the Constitution guarantees that new states should be on equal footing with existing states. The end result right now is that we’re not as we don’t control or manage much of our own land. It doesn’t matter if it is justifiable because it is arguably illegal.

      As far as the wording in the enabling act, I think there is a valid case to be made that there is a promise to dispose of those holdings. I’d be curious to see records of the Congressional debate concerning the act as well as comparisons to other enabling acts to provide additional context. Even with that, the courts have a habit of ignoring original intent (a practice with which I strongly disagree) in favor of a “plain language” reading using modern understanding.

      • I agree that I know nothing of the original intent, but I suspect the bill sponsors don’t actually know either. I would like to see the debate transcript too. I doubt they were being generous to the state at the time.

        And I disgree that context favors the “shall sell” interpretation. I think context strongly leans toward interpretation that the feds cannot keep all proceeds from land sales, but must share 5% of any lands “*which* shall sell.”

  4. Are sections 9,10,11 of that law still in full force as written in your link? I wonder if someone could sue the leg for using school land fund dollars for these idiotic lawsuits? (even if not for this lawsuit they have used the fund in other lawsuits).

    The third paragraph of sec 3. seems to pertain to much of any argument on this subject, seems to me at least the leg’s position is pretty much blown out by that.

    The act continues to doll out land for this and that, almost seeming to reinforce the position that it is Federal land to be transferred back to the state at the whim of congress.

    And section 13 further reinforces this position outright stating “That all land granted in quantity or as indemnity by this act shall be selected under the direction of the Secretary of the Interior, from the unappropriated public lands of the United States within the limits of said State of Utah.”.

    I don’t know Jesse, I just don’t see the legislature as having a leg to stand on.

    • Section 3 appears to be a truism more than anything else. It’s simply stating that any land not already privately owned can’t be later claimed as such. I don’t believe that this absolves federal responsibility to appropriately act as a trustee in disposing of the land. If it did, there would be no point to authoring anything else regarding land use.

      Section 13 simply establishes who is the responsible party for disposing of the land. I don’t think it creates any implication beyond that.

      I think the entire argument hinges upon the “shall” in Section 9. Does is mean that the land shall be sold, or only that what land is sold will produce revenue after a certain fashion? If the former, there’s a case. If the latter (which, based on the wording and treatment of other states, seems less likely), then there isn’t. If the feds are obligated to sell the land and they haven’t made any significant sales of land, it could be argued that they have effectively decided not to sell it. A lengthy delay in the execution of their obligations is the same as abrogation of those obligations.

  5. The Property Clause in Article Four of the U.S. Constitution gives the Congress absolute power over federal lands. A state government is in no position to issue demands, and there is no legal basis for any kind of lawsuit. It’s impossible to argue in federal court that the Utah Enabling Act, however interpreted, supersedes the U.S. Constitution.

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