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Legal scholars challenge underpinnings of Utah’s public lands campaign

First Published      Last Updated Oct 29 2014 10:51 pm

White paper » Suing the feds in order to take over millions of acres may backfire, experts say.

University of Utah legal scholars released a white paper Wednesday concluding the state has no legal basis to demand the federal government turn over title to public lands.

Some state lawmakers have clamored for the state to sue after passing a law in 2012 demanding the feds give the state 30 million acres by Dec. 31.

Suing would not only be a waste of money, but also set back efforts to resolve conflicts over public land management, according to John Ruple, a research fellow with the U. law school's Wallace Stegner Center for Land, Resources and the Environment.

"We recognize there are legitimate questions about how federal lands are managed and there is room for disagreement, but demanding the federal government give those lands to the state is legally untenable," said Ruple, who co-wrote the paper with the center's director, law professor Robert Keiter.

"It takes time and energy from other efforts that could lead to success on these efforts, such as the [Congressman Rob] Bishop process and land exchanges," Ruple said. "There are ways we can create a win-win. This isn't one of them."

But the state's legal point man on public lands, Assistant Attorney General Anthony Rampton, contends the U. scholars are hardly raising any arguments. State lawyers have examined arguments raised by Keiter and Ruple.

The Stegner scholars have been watching the public land transfer movement build steam, with proposals surfacing in other state legislatures and spin-off legislation getting enacted in Utah.

"We haven't seen a careful critique of it yet," Ruple said. "It had gone unchallenged too long and it's time for people to take a careful look at the arguments that underpin it."

He cautioned that the analysis doesn't explore whether the state could manage the public lands better.

But environmental groups cited the Stegner scholars' findings in calling on Utah leaders to rethink their obsession with land transfer, which they say could lead to a fiscal train wreck if the state doesn't sell the land to cover the cost of managing it.

"This paper confirms that Utah's attempt to seize public lands is illegal and a massive waste of taxpayer resources," said David Garbett, staff attorney with the Southern Utah Wilderness Alliance. "The state should give up its misguided efforts to deprive Americans of our shared national heritage of public lands."

Led by Rep. Ken Ivory, R-West Jordan, many state officials have long argued the U.S. Forest Service and the Bureau of Land Management are mismanaging their holdings to the detriment of both rural communities and the environment.

Ivory, who did not immediately return an e-mail request for comment, has argued that the federal government has reneged on a "promise" to Western states to sell public land within their borders.

But, citing the U.S. Supreme Court, Ruple says the Constitution's Property Clause clearly "grants Congress an 'absolute right' to decide upon the disposition of federal land and '[n]o State legislation can interfere with this right or embarrass its exercise.'"

"Congress has discretion to say they want to hand over title, but they don't have a legal obligation. That's a very different question," Ruple said. The "Public Lands Transfer Act is putting a square peg in a round hole."

Moveover, he noted, the Utah Enabling Act, which led to statehood in 1896, required residents of the new state to "forever disclaim all right and title to the unappropriated public lands lying within the boundaries."

Rampton believes a careful reading of various states' enabling acts contain provisions that support the notion that the federal government would give up lands.

"There is no dispute that when Utah was admitted to the union in 1896, federal policy regarding public lands was that they were to be disposed of," Rampton said. "The federal government and the states, particularly in the West, recognized that the states would be limited in the ability to derive revenue from these lands. It was understood that over time, the federal governement would dispose of these lands."

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