In a throwback to English feudalism, the United States Government currently claims ownership of over 60% of Utah’s land mass and even higher portions of land in many other western states. The vast ownership and retention of land by the federal government is an aberration in the history of the United States where the general policy for public land was one of disposal and settlement rather than retention and federal management. In Utah, lawmakers have sought to assert Utah’s claim for such lands to be disposed of as promised by the federal government when Utah was created as a state.
In 2012 the Governor signed HB 148: The Transfer of Public Lands Act (TPLA), sponsored by Representative Ken Ivory whom we interviewed about this subject last year. The bill passed with healthy majorities in both chambers and was also ranked in our Libertas Legislator Index for 2012. The new law directs the United States Government to transfer title for public lands back to Utah as promised in the Utah Enabling Act. Under TPLA, this transfer is called for by December 31st, 2014. The bill also called for a study which was subsequently released by the Utah Constitutional Defense Council. Earlier this year, a BYU Law Review Article evaluated the legal issues surrounding the TPLA.
We agree with The American Lands Council and other groups calling for such transfers. The transfer of public lands is critical to ensuring the state sovereignty envisioned by the founders for our federal system. The retention of land by the federal government is an inappropriate and unjust arrogation of power—a power not based in constitutional principles, but the loose and broad interpretation, or outright violation, of them.
The following are some of the key legal arguments for the transfer of public lands:
The Utah Enabling Act
Approved on July 16, 1894, the Utah Enabling Act led to establishing Utah’s statehood. The act contains a number of provisions that create a contractual obligation by the federal government to dispose of public lands—promises that have not been kept. In section 3 of the act, as a condition of statehood and contractual consideration for promises, Utah disclaimed title to all public lands in order to ensure clean title for the federal government. This was done in order to facilitate ultimate disposition of lands to future buyers for future settlement without encumbrance. If Utah knew then what we know today about federal retention of land, it is highly doubtful that they would have so agreed to disclaim all encumbering ownership interests. In addition to the provisions for clean legal title, there was a provision that Utah would receive a five percent share of the proceeds from all public land sales—further indicating the obligations and intentions of the federal government to dispose of public lands.
The historical context of this enabling act further strengthens the case for the federal government’s duty and contractual obligation to dispose of public lands. This position was even supported at the time of the Constitutional Convention. A congressional resolution passed on October 10, 1780 resolved that “the unappropriated lands that may be…relinquished to the United States, by any particular states, …shall be disposed of…and be settled and formed into distinct republican states, which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states.” This approach was followed for every state that entered the union and was provided for in the enabling acts of all the states. It wasn’t until 1976 under the Federal Land Policy and Management Act (FLPMA) that the federal government ceased the policy of disposal by codifying the progressive era policy of retention.
Additionally, Supreme Court precedent supports the notion that such obligations to states are “solemn compacts” and “bi-lateral agreements” to be performed “in a timely fashion.” Critics of transferring land to the states sometimes refer to court precedent but BYU’s law review article explains that those are mostly inapplicable as mere court “dicta.”
The law review article concludes that Utah’s strongest legal argument is this compact-based obligation by the federal government creating a legal duty to dispose of public lands. However, in addition to this contractual duty, there are additional arguments for the disposal of public lands based on other constitutional and legal doctrines.
The Property Clause of the U.S. Constitution
Article IV, Section 3 of the United States Constitution makes clear that “Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Utah’s TPLA simply calls on the government to comply with this clause and dispose of public lands in accordance with its promise in the enabling act. While Congress has the ultimate power and authority to dispose of the property, the issue here is failure to carry out that responsibility in light of Utah’s position as a state equal to other states.
The Equal Footing Doctrine
The equal footing doctrine is a legal concept based on the Constitution, the enabling acts of various states, and court precedent. Simply put, it is the idea that each state enters the union on “an equal footing with the original States in all respects whatever.” This doctrine supports the notion that Utah should enter the union with the same policy of federal disposal of lands rather than the new and different policy of retention. States east of Colorado that were admitted to the union prior to Utah were afforded this same right and Utah and other western states should be no different. Thus, the federal government has a constitutional obligation to dispose of public lands in the same way it did for other states.
In Federalist 39, James Madison explains the nature of the union and responds to concerns that the Constitution extinguished the state sovereignty of the confederation in favor of a national government: “each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.” This is the central idea of federalism: states are sovereign, equal with one another, and co-equal in authority with the central or federal government. This is because the authority of the federal or central government is derived from a combination of the people and the several sovereign states.
Madison explains the authority “among communities united for particular purposes” as being “vested partly in the general and partly in the municipal legislatures” in contrast to a national government where “all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure.” In our unique federal system “the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere.” For the new nation “the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”
This central concept of federalism is illustrated well when you look at eastern states where federal ownership of land is minimal. However, it is hard to understand how Utah and western states can be co-equal or sovereign when the central government owns and controls a majority of land and refuses to dispose of this land to the jurisdiction of the sovereign states. In the case of western states it seems more like we have a feudal national government than a federal government.
It is not fitting for sovereign states of free people in these “united” States to tolerate the federal government’s massive ownership of land. Such an arrangement reeks of the feudal tyranny of English monarchs—rebellion against which formed the basis for our nation’s very existence. We commend the Utah legislature for seeking to abolish the shackles of state serfdom by asserting their sovereign rights and call upon other states to follow suit. Additionally, it is vital that Congress act under their constitutional authority to dispose of public lands.