Battle over federal control of public
lands has history of almost 200 years
(Editor's 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. This is the third in the series).
The battle over who controls non-private property land within states can be traced back to the years not long after the Revolutionary War when the United States started to expand.
HB 148, the bill passed by the Utah State Legislature in the 2012 session is just another shot in that long battle, although it can be differentiated from many attempts in the past to wrest control of land from federal hands.
Resolutions by state legislatures, including Utah, have come numerous times asking and even demanding that the federal government give up control of lands through the Enabling Act. Most of these resolutions came within the 20th century as the seeming propensity of the federal government to grant the lands to the states and the people (homesteading) changed to retention of the lands. That was a change, states involved noted, that was a 180-degree shift from earlier days.
In 1976, Congress passed the Federal Land Policy and Management Act (FLPMA), which stated that "Congress declares that it is the policy of the United States that the public lands be retained in federal ownership" with the caveat that "unless it is determined that disposal of a particular parcel will serve the national interest."
In the 1960s and '70s, various states began to agitate for the turnover of the federal lands, or at least some control over them. Nevada passed a law stating ownership of various lands throughout its state boundaries. It was an outright declaration. This was part of the movement called the Sagebrush Rebellion. However, HB 148 takes a different tack. It just states that based on the federal agreement at statehood, it has a duty to turn over the lands.
As far back as 1828, the national government was wrangling with states out "west about lands that they got through Enabling Acts. The west then was states like Missouri and Illinois. In fact a congressman from Illinois at the time, in the middle of a similar land dispute with the federal government, wrote in a report that states agreed not to tax the federal land because Washington had "implied" that the lands would be sold.
A few years later (1833) President Andrew Jackson vetoed a bill by Congress that would have used money that was made from the sale of public lands in the east improperly, not following the parameters of the agreement on the proceeds as set up with the states involved. He said he was looking out for the new states that would come into the union, and that the land should be disposed of properly under their agreements with the federal government.
While HB 148 has many feet to stand on, probably the strongest argument it has is based on the Enabling Act, which was part of the agreement when Utah became a state. While this has been interpreted in many ways, with various parties seemingly pulling out bits and pieces to fit their point of view the entire provision could be viewed as what the state and the federal government should stand by. This idea of an entire document carrying the weight of proof comes from the United States Supreme Court which has stated that consistency within a document, between its provisions, is the proof of the pudding.
Section 3 of the Enabling Act has presented ammunition for those against the turn over of federal lands to the state. In part it says that "...the people inhabiting said proposed State (in this case Utah) do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof." But section also says a bit later that "... and that until the title there too shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States."
Opponents of the bill use the piece of the act that says "forever disclaims" shows the national government has a right to hold onto the land. But later in the same section comes the title extinguishment, which means to many that the federal and state government did agree at the time that at some point lands would be turned over to the state. But, again, only looking at sections of the act goes against what the courts have said is precedent to look at the entire structure of the agreement. Again, they have said that the evaluation of any written agreement must be congruous with those accompanying sections and words.
Section 9 of the act also shows why the state had an interest in giving title to the federal government (other than that it wanted to become a state within the United States). With the ability to have clear title then the national government could dispose of properties to private parties where in the state would get part of that money for a permanent fund for supporting education. This means by disposing of the lands the state would benefit by allowing any buyer the clear state of mind that there was no unclear ownership of the lands. Section 9 also has the words "shall be sold" in it, refering to the lands. Therefore, if the federal government does not dispose of the lands, the state gets no benefit from it. Supporters of HB 148 see the agreements between these two sections as one of the keys. The state gave something in the original agreement (clear title) so that they could get something back. But the federal government has not done its part. At present the state neither gets a percentage (because sales are non-existent) nor can it collect property taxes on the lands. Therefore they want the land back to do some of what they see the federal government agreed to do almost 120 years ago.
The idea of a duty to dispose by the federal government has never been directly challenged in court. Proponents of HB 148 say it is time that someone did challenge Washington on what seems to them a 200 years philosophy of signing agreements with states that come into the union and then reneging on the deal they made.
HB 148 will likely be addressed in the courts of the land, possibly up through the Supreme Court. If the court takes it on, it will be landmark decision.