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Legal analysis supports Utah's law on getting federal land

SALT LAKE CITY — A new analysis says Utah's Transfer of Public Lands Act is a viable and defensible way for the state to control more of the land within its borders by rightfully getting that land from the federal government, despite critics who assert the law is blatantly unconstitutional.

Commissioned by the Sutherland Institute's Center for Self Government in the West, the analysis by attorney and constitutional scholar Carrie Ann Donnell lays out the legal case for HB148, which was signed into law in 2012.

"We're just hoping to add to the public information on this debate," said Carl Graham, the center's director. "We want people to go into this debate informed and get over the hump that 'this is just crazy talk.' It is not crazy talk."

The analysis looks at HB148, sponsored by Rep. Ken Ivory, R-West Jordan, that gives the federal government a deadline of Dec. 31, 2014, to cede title to the federal lands it owns in Utah, with certain exceptions such wilderness areas, national parks and land that is host to military installations.

The legal movement grew out of frustration with the federal government's control of two-thirds of Utah's lands and the economic disadvantage that presents for Utah, as well as other Western states.

Ivory has touted greater control by Utah as way to better fund education, but groups such as the Southern Utah Wilderness Alliance and others say the state is embarking on a foolhardy and costly fight.

This latest analysis leaves those critics unimpressed.

“The Legislature’s own attorneys acknowledge that the Transfer of Public Lands Act is almost surely unconstitutional. This is both bad law and bad policy," said Stephen Bloch, legal director for the Southern Utah Wilderness Alliance. "The United States will never turn over public lands — lands that are owned by all Americans — to the state of Utah, period."

But Donnell said what critics overlook is the context and the history behind the Utah Enabling Act, which serves as the genesis for Ivory's HB148.

"There was never an intent for the territories to give up all their lands to the federal government, and there was never an intent for the federal government to hold that land indefinitely," she said.

Rather, Donnell said, the idea behind such language was that the land was to be sold to pay off the common public debt of the Revolutionary War and to finance the new government through its disposal. The land was also to be returned to the states to generate taxes and economic development, she added.

Donnell said the state's land grant did not constitute an "absolute" transfer but was predicated on the premise that the federal government would one day let those lands be returned to the states.

Although there was no timeline on the disposal, Donnell noted that Utah's demands are now more than 100 years old and ripe for a legal case.

"The main takeaway is that the Transfer of Public Lands Act that I reviewed is perfectly constitutional," she said. "Proponents should not be deterred from moving forward because of the fears or threats around it. Legally, it would survive any challenge in court."

Graham said Utah's demands — seen as upstart and futile by some — are being replicated by other states in the West. He predicts that by the end of the legislative session in 2015, there will be at least five — and possibly seven — other states with similar laws on the books.


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