BYU Law Review on H.B. 148 – The Transfer of Public Lands

By Donald J. Kochan

PUBLIC LANDS AND THE FEDERAL GOVERNMENT’S COMPACT-BASED “DUTY TO
DISPOSE”: A CASE STUDY OF UTAH’S H.B. 148−THE TRANSFER OF PUBLIC LANDS ACT

2013 B.Y.U. L. Rev. 1133

Abstract

Recent legislation passed in March 2012 in the State of Utah–the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to as House Bill 148 (“H.B. 148”)–has demanded that the federal government, by December 31, 2014, “extinguish title” to certain public lands that the federal government currently holds (totaling an estimated more than 20 million acres). It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer.

The State of Utah claims that the federal government made promises to it (at statehood when the federal government obtained the lands) that the federal ownership would be of limited duration and that the bulk of those lands would be timely disposed of by the federal government into private ownership or otherwise returned to the State. Longstanding precedents support the theory that Utah’s Enabling Act is a bilateral compact between the State and the federal government that should be treated like it is, and interpreted as, a binding contractual agreement.

Utah’s TPLA presents fascinating issues for the areas of public lands, natural resources, federalism, contracts, and constitutional law. It represents a new chapter in the long book of wrangling between states in the West and the federal government over natural resources and public lands ownership, control, and management. The impact is potentially considerable–thirty-one percent of our nation’s lands are owned by the federal government, and 63.9% of the lands in Utah are owned by the federal government.

This Article provides an overview of the legal arguments on both sides of the TPLA debate. In the end, there is a credible case that rules of construction favor an interpretation of the Utah Enabling Act that includes some form of a duty to dispose on the part of the federal government. At a minimum, the legal arguments in favor of the TPLA are serious and, if taken seriously, the TPLA presents an opportunity for further clarification of public lands law and the relationship between the states and the federal government regarding those lands. Moreover, other states are exploring similar avenues to assert their claims vis-à-vis the federal government and are in various stages of developing land transfer strategies that will model or learn from the TPLA. That fact further underscores the need for a renewed serious and informed legal discussion on the issues related to disposal obligations of the federal government. This Article takes a first step into that discussion.

Download full article | Copyright (c) 2013 Brigham Young University Law Review, Donald J. Kochan

Legislative Summit on Transfer of Public Lands

By Kristen Moulton

April 20, 2014

“It’s time for Western states to take control of federal lands within their borders, lawmakers and county commissioners from Western states said at Utah’s Capitol on Friday.

More than 50 political leaders from nine states convened for the first time to talk about their joint goal: wresting control of oil-, timber -and mineral-rich lands away from the feds.”

Read full story | The Salt Lake Tribune

Public Lands Highlights from Governor’s “State of the State”

January 29, 2014 – Governor Herbert delivered the State of the State address celebrating Utah’s successes, outlining challenges, and explaining his plan for solutions. Public lands’ issues were frequently a part of the equation.

Among them, Utah’s unique challenge to adequately fund education for our growing student population. The Governor mentioned that nearly 70% of Utah’s land is controlled by the federal government, generating no property taxes to help pay for the growth.

Quoting James Madison, he emphasized that Utah needs to assert its rightful role as a sovereign state.

 

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.”

 

The Governor sees management of public lands as an area where Utah has to find its own solutions to its issues without being hindered by federal overreach. He defined state sovereignty as representation of the will of the people “while respecting the democratic and judicial processes.”

 

More effective management of our public lands is also critical to our state. At no time was this more evident than during the federal government shutdown. Our national parks were closed, tourists were turned away and the livelihoods of Utah business owners were put in peril. Yet we were told by many in Washington there was nothing we could do to solve this problem.

 

We do a lot of things well in Utah, but “doing nothing” is not one of them. I was determined to open the parks, and I told Interior Secretary Sally Jewel we simply had to find a way–and that’s exactly what we did. It took a little common sense and a lot of hard work. It took people of good will, including Representative Brad Dee, and legislators on both sides of the aisle working together to find the solution.

 

The Governor stressed his efforts in putting Utah in the best position to optimize its use of public lands, including signing H.B. 148 and working with Congressman Rob Bishop on his Public Lands Initiative. These initiative presents the state with “a unique opportunity to resolve” the issue of public lands transfer “by identifying public lands for multiple-use such as energy development, farming and ranching, and protecting” the state’s “iconic vistas and venues.”

Read the full text of the speech.

 

Compromise, Solutions Sought in Energy and Public Lands Debate | Deseret News

By Amy Joi O’Donoghue

January 13, 2014

“Amid all the contentious strife over energy development, access to Utah lands and the federal government, Rep. Rob Bishop, R-Utah, is trying to broker a solution that strikes at compromise.”

Read full story | Deseret News