Hoffman: Utah’s public lands aren’t about to change hands
Writers on the Range
Plenty of ink has been spilled lately over Utah’s Transfer of Public Lands Act, the controversial law requiring the federal government to turn over 31.2 million acres of public land to the state of Utah — without even a token payment to the U.S. Treasury. But should the American public take this proposal seriously?
The Utah Legislature’s legal counsel noted that the transfer law was likely unconstitutional. After all, the federal government’s right to retain and manage the federal estate is considered settled law according to a long line of Supreme Court cases, starting with Kleppe v. New Mexico in 1976. Nonetheless, state legislators have appropriated millions of dollars of Utah taxpayers’ money to study the potential implications of state ownership and to litigate title to federal lands.
Utah Rep. Ken Ivory, the bill’s lead sponsor, continues to press the discredited notion that certain states are somehow “entitled” to the nation’s public lands. He’s raised hundreds of thousands of dollars from his fellow county commissioners to form a nonprofit group, the American Lands Council, to push for state takeovers. As a representative of the council, he’s traveled far and wide, trying to convince Westerners that their states are the rightful owners of America’s national forests and Bureau of Land Management lands. Despite drawing the attention of sagebrush rebels like Cliven Bundy in Nevada and right-wing think tanks like the American Legislative Exchange Council, or ALEC, Ivory’s efforts have thus far failed to spur other states to pass similar legislation.
Rep. Ivory has also been stymied in Utah. When his bill passed in 2012, it demanded that the federal government relinquish all federal lands in the state by the end of 2014. That deadline passed without any federal action, and Utah’s attorney general has yet to file suit to force the issue. The issue remains alive, however; the Utah Legislature appropriated $2 million dollars to hire outside counsel to strategize and sue, if necessary.
Here’s the basic question: Does Utah have a legal leg to stand on? To seize federal public lands, Utah would have to file suit under the Quiet Title Act, which requires proof that the state has a valid claim of ownership. But the statute of limitations under this law ran long ago, with the passage of the Federal Lands Policy and Management Act in 1976.
Rep. Ivory’s cause is not attracting much political support either. Staunchly conservative editorial boards at Utah’s Deseret News and the St. George Spectrum recently editorialized against transferring federal lands to the state of Utah. Even Gale Norton, former Interior secretary under George W. Bush, would not back Ivory at a recent conference he hosted on the issue in Washington, D.C.
Then, just before Christmas, a 784-page economic study of the state’s proposed transfer found that the transfer failed to make sense financially for the state. According to the study, even if the state got to keep the public’s mineral royalties, it would still come up short. Under the economic study’s most optimistic scenario — based on consistently high oil prices — Utah’s public education system would face a $1 billion deficit in 20 years.
In order to make the numbers work at all, the state would have to aggressively drill for oil in many publicly valued places such as the region around Canyonlands National Park. And even doing that, the state would still face a $100 million backlog in deferred maintenance costs for everything from roads to campgrounds.
So here’s $2 million worth of free advice to the State of Utah: Stop the madness. Congress has the exclusive authority to transfer public lands. The only viable path forward is to pass transfer legislation through Congress and obtain the president’s signature — an approach that isn’t going anywhere. Remember, the American public hasn’t responded well to past attempts to seize control of their public lands. In short, it’s time for the backers of this doomed land grab to admit defeat and leave America’s public lands alone.
Hillary Hoffmann is a contributor to Writers on the Range, a column service of High Country News (hcn.org). She is a law professor at Vermont Law School’s Environmental Law Center, specializing in natural resources and public lands issues throughout the West.
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