Based on nearly 100 years of "gross violations" on the part of the federal government in its dealings with Utah's public trust lands, the Utah attorney general's office is being asked to consider a suit against the government.
James R. Moss, state superintendent of public instruction, sent a letter to Attorney General Paul Van Dam asking that he seek without delay to sue the United States for "inverse condemnation, breach of fiduciary duty or such other causes as you may determine, after evaluation of the facts of the case, to be appropriate."Letters also have been sent to state officials and Utah's congressional delegation asking support for the proposed suit.
Moss said there has not been time for responses to the letters.
Impetus for proposing a suit is Utah's long-standing problem in funding public services because of the amount of federally held land and the failure of trust lands set aside for education and other purposes to produce income, Moss said.
"There has been a historic lack of response from the federal government to compensate us for these conditions," he said. "We've been trying to win a fight with one hand tied behind our backs."
When Utah became a state in 1896, the federal government retained ownership of approximately 80 percent of the land. In exchange for its massive holdings, which could not be expected to generate tax income for the state, specific grants of land were made to education and other purposes. The federal government promised Utah a share in the proceeds from sale and/or other productive uses of the federal holdings.
Despite these "mutually binding obligations," Moss's letter says, "federal land management actions since statehood have repeatedly served to advance federal and special interests at the expense of the rightful beneficiaries designated in the Enabling Act."
The result has been to impose a continuing unfair burden on Utah's taxpayers and to deprive public education of critically needed revenues. The federal government has been guilty of gross violation of its duties under the historic agreement, the letter says.
In four examples of federal actions that have violated the intent of the Enabling Act, Moss says that:
-Some lands the state should have received in trust were already locked up within special federal reservations at the time of statehood and not available for transfer to the state. Congress provided that the state could select other federal lands (in-lieu lands) to compensate, but such efforts have been "delayed and subjected to special conditions which have unfairly and unnecessarily burdened the selection process." The state has not been paid for the value lost in the past 95 years because of the delays.
-New federal reservations for Indians, national parks, wilderness and recreation areas have been created since statehood without compensation to the state. "In essence, Congress has granted the same lands twice, the second time at the expense of Utah's taxpayers and school children, and has again failed to recognize or compensate the state for losses incurred . . . "
-Attempts to buy or trade other lands for state trust lands "captured" in the creation of federal reservations have been met with delays, refusals and lack of cooperation from the federal authorities.
-The federal government has coerced transfer of ownership of trust lands to its own ownership without fair compensation and, in some cases, without any compensation at all.
Some Utahns who have spent years in fruitless battles with the federal government on land issues hailed the prospects of a suit.
"It's long past due," said Cal Black, San Juan County Commission chairman. The federal government has consistently ignored provisions of the Enabling Act "for about 95 years," he said.
As a county commissioner, he said, he has seen first-hand the inequities involved in government dealings. For instance, when his county built a road through trust lands from Bluff and Montezuma Creek, the county paid full, fair value for the land.
The federal government, on the other hand, purchased 10,000 acres on the periphery of Lake Powell, under threat of condemnation, at $12.50 per acre, Black said.
"It's about time we made them do the same as we are expected to do," he said.
Margaret Bird, a Salt Laker who has done extensive research on trust land issues for a number of years, also would welcome a suit. Years of mismanagement and failure to abide by Enabling Act guidelines have robbed Utah schoolchildren of millions of dollars, she said.
In the unaudited report for 1989, income to public schools from trust lands was listed at $3.1 million. The public schools "own" 3.5 million acres of state land.
"If this had been a private trust, we would have sued the trustees or thrown them out a long time ago," Bird said.
She displayed documents showing that the federal government pays only $7,000 per year to lease 20,000 acres of trust land in the Clearfield area.
Under the Enabling Act, Utah received land grants totaling 7.5 million acres or 14.2 percent of the total land area. During the territorial era, public schools were given two sections (one section equals a square mile) of each township and upon statehood, the number was expanded to four - approximately a ninth of the land area. The poor quality of much of the land was the reason for the additional grants.
Over time, much of the land has been withdrawn for environmental reasons, for military uses, Indian reservations, national parks or monuments, power sites, public water reserves, wildlife refuges and other uses, making it unavailable for development that would enhance education.
The amount of income generated by the trust lands has never reached its potential, said Douglas Bates, legislative and legal counsel for the State Office of Education.
Mismanagement at the state level, as well as federal failure to follow through on Enabling Act provisions, has kept income from the lands to a minimum. Much of the land was sold at prices far below its actual value as communities were developed. Lease and royalty fees for agricultural or mineral uses of the land have historically been low, Bates said.
Bates represents educational interests on the state board. Only over the past few years has the law required such representation, although education has sometimes had an ex-officio member of the board. The board now more clearly represents all the interests, he said.
He said there is a renewed interest on the board to make trust lands productive for the purposes for which they originally were set aside.
Patrick Spurgin, present Division of Lands and Forestry director, also said in an earlier Deseret News interview that the board is determined to push for income from the trust lands.
Amounts given to trust institutions
Utah State University $ 78,920
School for the Deaf 39,261
Utah State Hospital 45,246
Institution for the Blind 34,715
Miners Hospital 98,921
Normal School 50,196
Public Buildings 10,195
Youth Development Center 21,916
School of Mines 44,662
University of Utah 118,826
Wildlife Resources 10,749
TOTAL INCOME DISTRIBUTED $3,724,011
For the fiscal year ended June 30, 1989 (unaudited)