SALT LAKE CITY — Utah lawmakers voted Wednesday to draft a lawsuit against the federal government with the goal of eventually transferring public federal lands into state ownership.
The effort has no precedent in the U.S. Supreme Court, but a team of lawyers says there is a chance Utah could take the case directly to the high court, which would cost an estimated $13.8 million or more in legal fees, in addition to more than $500,000 already spent on legal consulting on the issue.
It's an expensive gamble as the Supreme Court may decide not to hear the case, much less order that federal lands be entirely turned over to the state. But Utah does have legal standing in policies that direct the future status of those lands, according to George Wentz, an attorney with the New Orleans-based Davillier Law Group.
"We are not saying that we believe that there is a high probability that the Supreme Court of the United States would issue an order transferring the public lands from the federal government to the state. We don't believe the court will do that," said Wentz, who was one of several attorneys from across the country hired to give a legal analysis of the issue.
"What we do believe is that there is a significant constitutional question as to whether the federal government has the power to permanently retain the majority of the land within the borders of the state of Utah," he said.
Even so, members of the Commission for the Stewardship of Public Lands said it's worth the cost given the potential financial benefits to the state and resolution to what several legislators are calling "the greatest issue facing our state."
"We recognize that this has not been an easy issue, that there's risk in taking a stand on any issue, but certainly this is one that has been worth the study and analysis and development," said the commission's House Chairman, Keven Stratton, R-Orem. "We need to ask ourselves what is best for these lands and how can they best be protected and managed and strengthened going forward."
A legal analysis of the case identified several legal theories that attorneys say give Utah's case merit in federal court. One deals with the principle of equal sovereignty, which mandates that states have an equal level of independence. As an extension, lawyers also cite a claim of equal footing, which requires that states admitted to the U.S. receive all the sovereign rights enjoyed by the original 13 colonies, including the right to control land within their borders.
Another theory states that when Utah was granted statehood, the deal was made under promises that the federal government would "timely dispose" of public lands in Utah's borders and those in other states. If the court ruled in favor of this claim, it wouldn't necessarily require the federal government to transfer lands to the state. But it would restrict federal agencies from permanently retaining those lands, according the legal analysis.
Once the lawsuit is drafted, the attorney general's office will decide whether to take it to the Supreme Court. Parker Douglas, chief of staff and federal solicitor for the attorney general, said "there's arguably a case" for Utah, but it's undecided whether it will be taken to Washington, D.C.
"That remains to be seen," Douglas said. "We will look at it and we will consider it."
The federal court system has dealt with transfers of land ownership on submerged lands, such as the bed of Utah Lake, but no case has sought a transfer of federal dry lands to state ownership. It's unclear what the Supreme Court would decide, but Utah's goal isn't out of reach, according to Ronald Rotunda, a professor of law at the Chapman University's Fowler School of Law.
"While the remedy is far down the line, I don't think this would be an academic exercise that Utah is successful," Rotunda said.
Rep. Mike Noel, R-Kanab, said the revenue brought in from a land transfer would benefit schools and other state priorities. He said opportunities for hunting and recreation would also be preserved.
"What I would like to be able to do is be able to drill a well without a protest, without having to spend the money that we have to spend," Noel said.
Other members of the commission, however, were skeptical of the proposal and the cost of taking it to the Supreme Court.
"I'm stunned by the $14 million figure, and I'm stunned that we're talking about proceeding down a path that's our best guess," said Rep. Joel Briscoe, D-Salt Lake City. "What could we do with that money otherwise that could benefit the citizens of Utah?"
Briscoe said it is "a testable proposition" that the state would inherently manage those lands better than federal agencies.
"Show me what would be better. I don't take it on assumption that it would be," he said.
The commission voted 6-2 to have the team of attorneys draft a lawsuit to refer to the Utah Attorney General's Office for consideration, which could take several months.
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