http://www.postregister.com/articles/opinions/2016/08/02/guest-column-fantasy-litigating-public-land
Guest column: Fantasy of litigating for public land
Post Register (Idaho Falls, ID) - Tuesday, August 2, 2016
Author: Jim Key
The only winners to litigation for state ?rights' to public lands will be the lawyers and PR firms, writes Jim Key.
By Jim Key
George Morrison's guest opinion presents an excellent rationale for the federal government retaining ownership of federal lands and restrictive policies on their limited disposition. This commentary provides a summary of the law that justifies this point of view.
Several western states are laying the foundation for suing the federal government for ownership/control of federal public lands-again. Other states are thinking about joining this boondoggle. For example, Utah has spent $1 million so far and may obligate up to $14 million. Their current expenses include $341,513 for unexplained "public relations." Quite frankly, legal consultants are picking the pockets of legislatures by telling them what they want to hear.
The remainder of this commentary relies heavily on two analytical papers. The first is a University of Utah Stegner Center White Paper No. 2015-01, "A Legal Analysis of the Transfer of Public Lands Movement," by Robert B. Keiter. The second paper is "To Transfer or Not to Transfer, That Is the Question: An Analysis of Public Lands Title in the West," by Andrea Collins, Montana Law Review, 76 Mont. L. Rev.309. Both papers are available online. Anyone interested in this subject should read both as they contain the history, development of foundational law, and seminal U.S. Supreme Court cases. The writing is clear, concise, interesting, and avoids "legalese."
The Property Clause in the U.S. Constitution (Article 4) gives Congress absolute control, including disposal, of federal lands. It follows that Congress also may retain property in federal ownership. These transactions occurred before the relevant states acquired statehood. Therefore, states cannot demand return of property they never owned.
Congress, who has the exclusive authority to negotiate the terms and conditions of statehood, passed agreements conferring statehood commonly referred to as Enabling Acts which, among other things, required states to? "forever disclaim any right to more land" ? than contained in the agreement.
The Equal Footing principal does not guarantee every state equal portions of federal property. It does guarantee equal political representation. This point has been purposely misunderstood by legal consultants to Utah.
The Federal Public Lands Protection Act of 1976 consolidated 3,000 separate laws dealing with different aspects of public lands into one act, greatly simplifying management. It says that Congress holds these lands as a public trust for all citizens and may only dispose of selected parcels in the interest of the United States. As a trust, the public and/or the U.S. Treasury would expect revenue for disposition of federal lands. Thus the door may be open a crack if states want to buy the lands, but the sale must be at fair market value. The purchase price plus maintenance of lands, including fire protection, would bankrupt states. Rosy economic analyses by consultants are discredited by Mr. Keiter. Since these states had the option to get them for free in 1932 and declined because they would lose associated federal reclamation funding, they are unlikely to buy them now.
There have been a number of challenges to parts of these laws, including the Sagebrush Rebellion, and the Supreme Court has ruled in favor of the federal government in each case.
The legal hurdles to forcing an act(s) through Congress, fighting challenges in the courts through the Supreme Court, and amending the federal and relevant state constitutions is simply a "hill too far." The apparent strategy of the legislators promoting this exercise is to launch a massive PR campaign to create a broad public outcry that demands the transfer.
The only winners in the failed effort will be the cadre of lawyers and public relations agencies that don't really care what happens to public lands, but rather, care about jumping on the gravy train.