Should public lands belong to all Americans, or to separate states?
Over the years states' rights have been a big issue. After the Civil War in the 1860s, the federal government became stronger as states settled into the thought that any action by them to maintain their rights might be misconstrued as treason. That doesn't mean the issues were dead, though. While the pot was kept boiling by state officials about things the federal government was doing, the lid was generally kept on the hot kettles of discontent.
In recent years, however, the reach of the national government has seemed to become extreme to some, many of which have formed political and business relationships to fight the trend. On the other hand, other groups continue to look to the federal power to monitor, control and regulate areas that many state politicians see as their area to control.
This has led to a divisiveness about many issues that have created gaps almost as large as what appeared in the 1850s, which led directly to the national conflict.
Today the call for states' rights is as strong as it has ever been. But instead of being fought along the lines of issues like slavery and tariffs, it is being battled out over issues like national health care, abortion, environmental regulation, presidential powers, immigration and land use/ownership.
That latter issue is basically a western one. Many in the east do not even realize that the federal government owns the majority of land in many western states, and even if they do know, they see no reason why it should change.
Many westerners, on the other hand, want it to change. They claim that under the present situation, many states, including Utah, are hamstrung by the fact that so much of the land in their states is under federal control, they have no way to control their economies, their recreation, development or even their destinies.
With all these issues of state sovereignty in mind, a number of states have created what is called Constitutional Defense Councils to defend states' rights against the national government.
It would seem the job of defending states' rights would fall to a state's attorney general. However, in some cases the attorney generals have refused to defend what the state felt its rights were (for example Arizona concerning some school issues) and in other cases the resources for the AG's offices were not there to do that job.
Consequently more and more states are coming up with a new tool to evaluate and in the end defend what they feel their rights are: The Constitutional Defense Council. These councils have the independent power to retain legal council to challenge what their members feel violate state sovereignty. Creation of such councils began in the 1990s. It was during that time that Utah created its own version of the Constitutional Defense Council.
Up to this time the Council has not done much, but with the advent of HB 148 (officially called the Transfer of Public Lands Act) its work may be cut out for it. This kind of issue, based on perceived promises from the federal government when Utah became a state, is a perfect fit for its powers.
In March of 2012, Utah Governor Gary Herbert signed the HB 148 into law. The state maintains that Washington has kept around 25 million acres of land that lies within Utah despite promises to cede that land to the control of the state government in a timely way (after the 1896 action by Congress that made Utah a state). During remarks at the signing, Herbert maintained that the way the feds have managed and retained the land has kept Utah at a disadvantage compared to other states, due to the fact that the state cannot collect taxes on federal properties.
The Constitutional Defense Council in Utah is made up largely of legislators (both from the majority and minority parties) and county officials. It is headed either by the governor or lieutenant governor. The Attorney General's office also has an appointee on the Council. The legislature also appropriates money for the council to operate, although under the law none of the members actually get paid for being on the council but can be paid a per diem as well as travel expenses. During the 2013 Legislative Session the body set aside over $1.8 million for the Council to operate.
Up to present time the Constitutional Defense Council has also been involved in the action concerning RS 2477 roads in the state and some water rights issues.
But beyond the Council that will be in place to challenge the federal government, what are the issues? During Swenson's presentation he presented the side that the state should have control of these lands and he conveyed that those on the other side of the issue are basing their objections mainly on myths.
The other side, of course, doesn't see it that way. They believe they have a strong hand in keeping the lands under the federal governments purview.
Those issues will be discussed in the upcoming articles.
(Editors note: In reaction to several questions and calls about the article on the presentation that Mike Swensen from the USA-ALL organization did on June 20 at the Carbon County Chamber of Commerce monthly luncheon, the Sun Advocate has decided to run three articles discussing the issues related to House Bill 148, which asks the federal government to turn over certain lands to the state of Utah).