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'We can't wait': Utah lawmakers ratchet up fight for federal lands

Published February 21, 2012 9:41 pm

Legislature • Bills seek to seize control of millions of acres, but court fight seems certain.
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Utah lawmakers proposed aggressive steps Tuesday to wrest away control of millions of acres of federal lands, a move that would likely draw a protracted court battle, but supporters believe could bring billions of dollars to the state.

"It's been 116 years that we've waited. We can't wait any longer," said Rep. Ken Ivory, R-West Jordan. "Our children can't wait any longer."

If successful, the measures would also give the state the authority to permit, or not permit, oil and gas exploration, grazing, mining, logging or vehicle travel across Utah's national parks.

The package of public-lands bills breezed through the House Natural Resources Committee on Tuesday with one Salt Lake City Democrat, Rep. Joel Briscoe, opposing the measures.

Taken together, the bills would issue a demand to Congress that it transfer ownership of federal lands within Utah to the state by the end of 2014 — an arrangement proponents say was solemnized at Utah's statehood but that opponents say is a misreading of the law.

If Congress and the White House fail to comply, the bills would allocate $3 million to begin litigation to force the federal government to relinquish ownership of the land.

"What we want and demand as a state is control of these lands," said Rep. Ken Sumsion, R-American Fork, and a candidate for governor. "We can manage them, we can determine which ones would be sold, which we can keep to preserve some of the beautiful areas of our state … that we'd like to preserve for generations."

But Peter Metcalf, CEO of Utah-based Black Diamond Equipment, blasted the proposal, saying it is "demented and an insult to all Utahns."

"That's just an absolutely ridiculous, egregious and stupid" proposal, Metcalf said.

Public lands have made the state a magnet for outdoor recreation, generating billions of dollars. But Utah has proven unable to manage its state parks, he said, so there is no reason to think the federal lands would be different.

"It's one of those things where the Legislature is engaged in acts of stupidity to make a point," he said. "They would be terrible stewards of these lands. … [The lands would be] mortgaged for the benefit of a few large corporations and the losers would be the general public."

And Stephen Bloch, attorney with the Southern Utah Wilderness Alliance, called it "political pandering at its absolute worst."

"These are public lands — owned by all Americans and our children and grandchildren — and are not to be sold off by parochial politicians hoping to help their corporate friends make a quick buck," Bloch said.

Legislative attorneys have warned that there is a "high probability" that the attempts to force federal action are illegal, since the U.S. Constitution explicitly grants Congress the authority to own property and enact laws regarding that property.

But Chief Deputy Attorney General John Swallow, who is campaigning for Utah attorney general, said that "we believe, from a legal standpoint, the proposals before you today are a reasoned" approach.

"You pass these bills," Swallow said, "and this office will aggressively defend the policies of the Legislature."

House Speaker Becky Lockhart, R-Provo, said she hadn't read the legislative attorneys' appraisal, but said that typically their analysis is based on Supreme Court precedents, which can be reversed on constitutional grounds.

"If it results in the future of hundreds of millions or perhaps billions of dollars to fund public education, then it's probably a worthy cause," Lockhart said.

Gov. Gary Herbert, who is running for re-election, is on board.

"We fully support giving the Attorney General's Office the legal tools it needs to take this fight to the federal government and get the federal government, as it did with other states over time, [to] allow Utah to optimize the value of public lands to benefit Utah's schoolchildren," said Herbert spokeswoman Ally Isom.

Their argument hinges on the interpretation of Utah's Enabling Act, in which the state surrendered ownership of land within the state until the lands "shall be sold by the United States." Ivory and his colleagues insist that is a legal mandate for Congress to sell the land.

Rep. Chris Herrod, R-Provo, who is running for U.S. Senate, said his goal is to give the Attorney General's Office as many weapons as possible to try to reverse the abuses Utah has suffered at federal hands.

"If there's any state in the nation that has had more undue influence exerted on it," Herrod said, "it's the state of Utah."

Briscoe argued that it is wrong to make public education a pawn in the lands fight, and said Utah could pay for its schools if it had the political will.

Proponents made the case that federal ownership is stymieing economic development and, in turn, depriving Utah schoolchildren. Utah is last in the nation in per-pupil spending and, Ivory said, it would take $2.2 billion to get the state to the national average.

If Utah succeeds in its challenge, Sumsion said, "We can eliminate — eliminate — our state income tax. … That's what is at stake here."

The bill has the backing of a broad range of education groups, including the State School Board, the Utah School Superintendents Association and the Parent-Teacher Association.

It is also supported by the Utah Association of Counties, Sportsmen for Fish and Wildlife, off-road vehicle groups, Utah Farm Bureau and Utah Eagle Forum.

Rep. Mike Noel, R-Kanab, warned that the state had better be prepared for federal retaliation if the state pursues its demand, potentially shutting down oil and gas leases, revoking grazing, timber and water rights and cutting off access across federal lands.

"How many members in this room have actually taken an action to protect their rights?" Noel challenged his colleagues. "Don't put a lot of fancy words on a piece of paper and say we're going to do it unless you're willing to stand up and do it."

gehrke@sltrib.com

Twitter: @RobertGehrke