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Utah could make a credible argument in court that the federal government should have to relinquish control of millions of acres of public land in Utah's borders, attorneys hired by a state commission told House Republican lawmakers Thursday.
"There is a good, sound case here," attorney John Howard told lawmakers. "It's a strong, arguable case with constitutional principles and rooted in constitutional law."
Howard told legislators that other states were given authority over most of their lands either at statehood or shortly after and Utah and other Western states could claim that, because they are entitled to equal treatment, they should also be entitled to ownership of the public lands.
Howard's firm, The Davillier Law Group, based in New Orleans, was hired by the Commission on the Stewardship of Public Lands to prepare a legal analysis of the arguments for the state to claim ownership of the lands. The commission recommended filing a lawsuit based on the arguments, at a projected cost of $14 million.
"What kind of a price can you put on freedom and self-determination," said Rep. Mel Brown, R-Coalville, calling the cost of the lawsuit "trivial" compared to what the state could gain. "Those who oppose it will trivialize it based on cost. In my mind, it doesn't mean a thing compared to the outcome."
Supporters contend that if the state controls the land, acreage could be opened to various kinds of development, bringing in billions of dollars for public schools.
The case faces significant challenges, cautioned Jim Jardine, a Utah attorney working with Davillier. The federal government could argue the Property Clause of the Constitution gives Congress the authority to decide how public lands should be managed and that Utah "disclaimed" ownership of the lands at statehood.
Those issues and others have been raised by legal scholars who contend that the land transfer argument is doomed to failure.
But Jardine said he was surprised by the strength of the argument the group had assembled.
House Speaker Greg Hughes, R-Draper, said he believes the argument assembled by Howard and his colleagues — whom he has called a "legal dream team" — is the culmination of various legal theories over the years as to why states should manage the lands and the time is ripe to move ahead.
"If we're not going to move the needle on this, we ought to stop talking about it," Hughes said.
Gov. Gary Herbert said he is still reviewing Davillier's work, along with Attorney General Sean Reyes, to decide whether to proceed.
"I think the thing that gives us all pause is the cost," Herbert said. "Like anything else, if you have a lawsuit and litigation, there's no guarantee for outcomes. So you kind of have to handicap: We're going to spend $14 million and our chances for success are what?"
Herbert said there have been discussions among the Western governors about how to handle the issue and if other states joined the case it would defray the cost and add weight to the argument.
Reyes said in an interview Wednesday his office will consider the Davillier memo as it decides whether or not to file a lawsuit, but there is also a desire to see whether a public-lands management bill crafted by Rep. Rob Bishop, R-Utah, moves forward in Congress.
"Arguments regarding the transfer of public lands, there are colorable arguments. Whether those are the right arguments for Utah, whether the timing is right, whether they are likely to succeed, those are different questions," Reyes said.
House Minority Leader Brian King, D-Salt Lake City, an attorney, said Thursday that the projected $14 million price tag is likely going to make some lawyers wealthy at taxpayer expense, but the state would likely lose the fight.
"It will be resolved by the federal judiciary. It's much more likely than not to be resolved against us," King said. "But let's get it before the federal judiciary. Let's get it decided so once it's gone and off the table we don't have people holding out the prospect of hitting the jackpot with getting federal lands and providing us with large amounts of money to fund public education and we can get realistic about how to pay for public education."
Twitter: @RobertGehrke