Utah passes law to reclaim federal lands

May 4, 2012

In what promises to be a closely watched faceoff between the federal government and advocates for states’ rights, the State of Utah threw down the gauntlet late March when republican Gov. Gary R. Herbert signed the “Transfer of Public Lands Act” (H.B. 148) into law. The law demands that the federal government relinquish nearly 30 million acres of federal land within the state–the majority of which is managed by the Bureau of Land Management (BLM) or U.S. Forest Service–to the State of Utah by the end of 2014.

The bill does not seek the transfer of national parks, wilderness areas, or certain national monuments.

Frustrated with what they see as a federal choke hold on the state’s economic potential, supporters of the bill argue that restrictive federal policies are blocking development of lucrative natural resources within the state which are needed to fund public education.

“This is not just a matter of chest thumping in Utah,” said state Rep. Ken Ivory, R-West Jordan, at a signing ceremony attended by Sens. Orrin Hatch, R-UT, and Mike Lee, R-UT, Rep. Rob Bishop, R-UT, as well as Gov. Herbert and a large contingent from the state legislature. “This is a matter of providing for the education of children and the long-term self-reliance of our state.”

Ivory, who authored the bill, pointed out that 65 percent of the land within Utah’s borders is federally owned and managed. And although a percentage of payments from natural resources like oil, gas, and mineral development and public lands grazing go to the state, Ivory emphasized that federal restrictions on natural resource development have dried up that source of revenue, forcing Utah to depend on “unsustainable” subsidies from the federal government for education funding.

“We need a paradigm change when it comes to public lands management,” stated Herbert at the bill’s signing. “Utah’s children deserve equal treatment with the children of any other state. Utah consistently ranks last in per-pupil spending. Without access to our public lands, it would take ruinous tax increases to bring Utah to the national per-pupil average,” he added. “The status quo cannot continue. This is a fight worth fighting.”

Questions have arisen, however, as to whether it is a fight that can be won. Although supporters of the bill maintain that the U.S. was legally obligated to cede federal lands to the state by the Utah Enabling Act of 1894, not everyone agrees. In a legislative review note, the Utah solicitor general observed that Congress has unrestricted authority to dispose of federal property if and when it chooses. According to the solicitor general’s assessment, the requirement that the federal government relinquish claim to federally owned lands in Utah within the next year and a half would “have a high probability of being declared unconstitutional.”

In the event that the federal government refuses to comply with Utah’s request, as it almost certainly will, any ensuing fights are expected to be thrashed out in the courtroom. Indeed, the bill specifically provides for the creation of a “constitutional defense council” to develop legal strategy for likely upcoming litigation.

BLM Director Bob Abbey has questioned the wisdom of the bill, calling it “divisive and unproductive.”

“It’s sad that they are spending so much time debating something that has absolutely no chance of ever happening in the real world,” Abbey told the Salt Lake City Tribune following a congressional hearing last month.

Not surprisingly, environmental activists have also strongly protested the legislation, maintaining that transferring title of federal lands to the state would result in environmentally destructive resource development and a sell-off of America’s public lands treasures to the highest bidder.

Although it is not yet clear whether Utah’s gambit will simply serve to “send a message” to Washington or if the maneuver will result in more substantial changes, the legislation definitely appears to be spawning a states’ rights movement throughout the West reminiscent of the Sagebrush Rebellion of the ’70s and ’80s. Idaho, New Mexico and Colorado are apparently looking at adopting similar legislation to Utah’s. Last week, the Arizona senate passed a bill with a 19-9 majority calling for the return of some 48,000 square miles of federal land to Arizona. The bill currently awaits approval or veto by Gov. Jan Brewer.

A new website, www.arewenotastate.com, has been created to explain the rationale behind the move by states to reclaim federal land, and chart the progress of the effort.

Other stirrings of a movement for states and counties to gain more control over federal lands are afoot. In December, Utah launched a legal action to gain control of some 18,784 rights of way through federal land claimed by the counties as “R.S. 2477” roads. Meantime, Herbert met April 27 in Salt Lake City with Gov. Butch Otter of Idaho, Gov. Matt Mead of Wyoming, and Nevada Gov. Brian Sandoval (who joined the group by phone) to begin hammering out a unified position to address land, energy and water issues faced by western states.

“We have the opportunity to drive the agenda on those things that are important to our states,” Mead told The Salt Lake City Tribune. “We want to have the western states, Democrats and Republicans alike, to have as strong a voice in this country as possible.”

A new organization, the “American Lands Council,” has also been created in an attempt to give counties more clout in federal land decision-making. Utah state Rep. Ken Ivory has been appointed president of the group. According to county commissioner Demar Dahl of Elko County, NV, the hope is to enroll over 100 western counties in the organization with a view to gaining more control over federal lands and resources within county boundaries.

It is far too early to tell whether the sprouting movement will reshape federal land management across the West. There is no doubt, however, that recent events like the national sage grouse initiative and road closures on federal lands have added momentum to the growing groundswell of interest in leveraging states’ and counties’ rights to have a say in how federal lands within their borders are managed. According to Rep. Ivory, Utah is simply stepping up to set the example.

“It’s time for us to stand as the model to the western states and the model to the nation of what it means to be self-reliant and free,” asserted Ivory. “This is a national matter.” — Andy Rieber, WLJ Correspondent