The State of Utah continues to move forward in the fight for control over the land within its borders. Good information drives good decisions, and even more information has recently been added to what we already knew about the case for state control of public land.
More than half of all land in the west is claimed by the federal government. Eastern states, on the other hand, which control up to 99 percent of their own lands, have been able to manage them in a way that is environmentally responsible while also increasing the tax base and growing economically.
Recently, the bipartisan Commission for Stewardship of Public Lands retained the services of a legal consulting team to provide recommendations regarding Utah’s pursuit of control over its public lands. These experts conducted a rigorous, objective review to determine if legitimate legal precedents and historical principles exist for the State of Utah to challenge the federal government’s near-permanent ownership of the majority of land within the State.
In 2013, the Legislature authorized an economic study aimed at understanding the fiscal implications of state ownership. The study was conducted and laid out the case for effective state management of public lands at a lower cost than the federal government.
The conclusion of the analysis is that compelling legal basis does exist for such a challenge, and three primary legal theories were identified as having merit:
1. The Equal Sovereignty Principle, which mandates that the States in the U.S. Federal system be equal in sovereignty with one another. In its recent ruling in Shelby County v Holder, the U.S. Supreme Court found the pre-clearance of Alabama voting laws unconstitutional based on the Equal Sovereignty Principle.
2. The Equal Footing Doctrine, which requires that States admitted to the U.S. subsequent to the 13 original colonies should receive all sovereign rights enjoyed by previously existing states in the U.S., including the right to control land within their borders. "All states enter the union under what the Supreme Court calls an ‘equal footing’ – a right that is older than the Constitution itself,” said Professor Ronald D. Rotunda, constitutional scholar and member of the legal team. “The Federal Government treats Utah and the other western states decidedly unequally. It actively stimulated growth in the 38 States to the East, while denying Utah sovereignty and forever locking away over 66 percent of the State’s land. This disparate, discriminatory treatment violates fundamental fairness and is contrary to the Nation’s founding principles. Our conclusion is that Utah can pursue legal remedies to right this wrong and put Utah and all western states on an equal footing with states in the East.”
2. The Compact Theory, which posits that Utah's acceptance of admission into the U.S. entailed explicit and implicit promises that the federal government would “timely dispose" of public lands in Utah's borders, as it had done with the states admitted prior to Utah. A number of historical events and actions tend to support the position that the United States has a duty to dispose of public lands.
The Commission voted in favor of a recommendation that the legal team draft a complaint to be forwarded to the Utah Attorney General to pursue legal action against the Federal Government to claim rightful stewardship over these lands.
On Jan. 19, the Heritage Foundation, Federalism in Action and the American Lands Council co-sponsored a meeting in Washington D.C. of leading experts on the issue of public lands, where they discussed the issue generally, as well as Utah’s case specifically.