Thursday, January 27, 2011

Utah and the Public Lands

OK, this post is obviously biased and influenced, but also fairly well informed because of my employment with the US Department of the Interior (But remember the disclaimer that I am not speaking in my official capacity on behalf of the Department!).

I was leaving the house last night to go to the church for Scouts and I heard a bit of Governor Herbert's State of the State address (that would have been fun to blog, but I had to go to Scouts.) Anyway, I heard him complaining about the Interior Department and the new plan to inventory "wild lands" which would seem to violate the settlement between Bush's Interior Secretary Norton and Utah Governor Leavitt from a few years back. Well, regardless of the merits of all that and whether the settlement may have been outside the authority of the Federal Lands Policy and Management Act ("FLPMA") and the inventory well within FLPMA, the Governor complained about the amount of federally-owned land in the State and threw out the line to great applause that the State is not a colony of the federal government! That is in line with the popular theme of Utah's overwhelmingly Republican Legislature some of whom are actually proposing to take federal lands, including national parks, by eminent domain.

This is when it's hard to be a moderate. Or maybe better phrased, it shouldn't be considered liberal or radical to bring up the clear language of the US Constitution (Supremacy Clause), the Utah Enabling Act of 1894 and the Utah State Constitution which appears to be is in serious conflict with these philosophies of some in the Utah Legislature and maybe even the Governor's chair. Well, here goes - from the Utah Enabling Act as a condition for Utah Statehood and a State Constitution:
"That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States"
And they did it in the Utah Constitution Article III, Section 2:
"The people inhabiting this State do affirm and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries hereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States."
Indian lands aside, which nobody seems to be challenging at present (except maybe with regard to jurisdiction in the Uintah Basin - but I'll leave that work issue to the side), I don't think this could be any clearer.

I know there needs to be better communication between the public servants in the federal government and those in state government and even with the public at large. And I know that there is a historical and geographical basis for a lot of anti-federal government sentiment, some of which is even healthy. I also concede that many have differing views of these Constitutional, federal and state legal authorities and some of those views are based on deeply held philosophical and even religious sensitivities. But I remain troubled and challenged in my passionate moderation. I would appreciate any input on these issues as long as it remains civil and charitable as I try to be.

February 29, 2012
See my 2012 [slightly] less-than-charitable take on Rep. Ken Ivory's bill on the public lands here.


  1. It is indeed troubling that the Governor of Utah should be all but calling for secession to the sound of thunderous applause of the Legislature. It is also troubling that far too many conservatives today are shouting "states rights" as though they were still living in the 19th century. The Supremacy Clause, and the outcome of the American Civil War, have well established the supremacy of the Federal Union over the States.

  2. My link went bad. Apparently there is one other person in Utah who has read the State Constitution:

    No evidence yet that anybody in the legislature has.

  3. Do you see any conflict between the line from the Ut. Enabling Act, Section 3 which reads: "and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States" and the line in the Federal Land Policy and Management Act at Sec. 102(a)(1) which reads: "The public lands be retained in Federal ownership, ...." In considering whether there is any conflict, between these two statements, be aware that Sec. 3 second of the Ut. Enabling Act begins with: "And said (State constitutional) Convention shall provide by ordinance irrevocable without the consent of the United States and the people of said State --."
    Is it possible that FLPMA at the aforementioned section represents a breach of compact?

  4. Anonymous at 1/16/2012-
    True that the original intent was to dispose of all the public lands but it ended up that nobody wanted them - or at least not permanently with the responsibility to manage them. The first sign that some overriding management was needed came about because of the range wars between the cattlemen and sheepmen resulting in the Taylor Grazing Act of 1934. FLPMA with all its flaws provides for the multiple use management to balance out many competing interests. You can try your theory, but it is very unlikely to prevail in the courts or in the Congress. The last state to flirt with "breach of compact" theories was South Carolina and that didn't go so well.

  5. So, is that "Anonymous" I just responded to the actual Ken Ivory? Or just a close supporter of his?


    (Which you have to cut and paste as a URL as comments don't carry links well).

  6. Besides the Taylor Grazing Act and FLPMA mainly dealing with surface use issues on the public lands, there is also the developmental history of federal mineral beginning with the Mining Law of 1872 originally intended to further the disposition of federal lands, still in effect in part, but significantly amended by the Mineral Leasing Act of 1920 making coal, oil & gas, and natural gas with a few others subject to leasing and royalties paid to ALL the people of the US. Then there was the common varieties Act of 1955 and more modern modifications of the mining law, some by regulation but still authorized by Congress, to limit free disposition of the public minerals.

    Ken Ivory would be hard-pressed to get this whole federal scheme upturned. I admit my personal interest as I work for the Department of the Interior and as I have already provided the caveats, I do not speak in any official capacity.

    I mean, even the Supreme Court has ruled FLPMA Constitutional (with maybe the exception of the legislative veto aspects). These theories should have been put to rest in 1865, 1896 or 1964 or at least 1976. Even that was nearly 40 years ago. It seems this is a terrible waste of time and money.

  7. Georgia was an "original State." As such, there were no federal territorial lands within its borders and it had no mutually binding enabling act compact with the US. The two states are, therefore, not comparable with respect to the matter of federal territorial (as contrasted say with post-statehood Article I enclaves) lands within state borders. Georgia had, from its declaration of independece complete sovereignty and jurisdiction over all of the land within its borders. None of this territorial sovereignty was ceded to the US under either the Bill of Rights or the US Constitution. Under the Equal Footing Doctrine every new state is entitled to "equality as to political rights and sovereignty" with the original states. For so long as the federal title remains upon the public lands of this state, this state is denied its constitutional claim to equality with the original states. Hence, a breach of compact. Also, there is no statute of limitations upon the assertion of sovereignty. P.S. This is not Ken Ivory.

  8. Thanks, Anonymous (and non-Ken Ivory)-

    There is case law in the federal courts that say whether or not a state was original or had public lands does not change its status with regard to "equal footing doctrine." That was intended as political equal footing not property interests. In establishing the Federal Union, original states gave up land claims they had, including Virginia's that went to the Pacific. If the original 13 were still sovereign, Utah would be part of Virginia right now.

  9. Here is the US Supreme Court's definition of "Equal Footing": “The requirement of equal footing was designed not to wipe out those diversities (diversity incident to area, geology, latitude economy, etc.) but to create parity as respects political standing and sovereignty.” ... “The ‘equal footing’ clause has long been held to refer to political rights and to sovereignty. See Stearns v. Minnesota, 179 U.S. 223, 245.” From United States v. Texas, 339 U.S. 707, 1950. (Don't feel bad. You are half right.)
    That aspect of sovereignty which was most jealously retained by the original states under the US Constitution was territorial sovereignty: “Each (former colony) declared itself sovereign and independent, according to the limits of its territory.” “[T]he SOIL and SOVEREIGNTY within their acknowledged limits were as much theirs at the declaration of independence as at this hour.” Harcourt v. Gaillard, 25 U.S. 523, 1827. Note the year of this case - 39 years after Const. ratification.
    Also, to your next point, none of the lands initially claimed and eventually ceded to the US by certain of the original states extended beyond the Mississippi. Beyond the Mississippi, the land belonged either to Spain or to France depending upon the time in history. We bought much of it in 1803 as the Louisiana Purchase.
    BTW: You did not answer the question, "Is there a conflict between Sec. 3, second of the UT Enabling Act compact (shall be and remain subject to disposal) and Sec. 102(a)(1) of FLPMA (permanent retention in federal ownership)."
    I suspect that the lower courts would say that the mere existence of public lands within a state does not place that state in a position unequal to the original states SO LONG AS CONGRESS IS MAKING A GOOD FAITH EFFORT TO DISPOSE OF THE LAND. No one expected that disposition would be immediate as it was in the case of Hawaii. However, when Congress declared that it would hold the remaining lands in perpetuity (FLPMA) then the so-called "public land states" were cast as markedly unequal to the original states and the compact for disposition was clearly breached - in my opinion.
    However, the status of the lands is a secondary issue for me. The primary issue in my mind is whether we are to remain a "nation of laws and not of men." Our general government has moral authority only for so long as it obeys the rule of law including abiding by its otherwise binding compacts with the member states and its constitutional mandates. Would you have our nation be otherwise?

  10. Thanks, Anonymous.

    I'm perfectly happy to be at least half right. For the rest of it, I think we are working from completely different assumptions and even understandings of history. I simply don't see the relation between the individual states and the Constitution as any form of "compact" at least not since the Articles of Confederation. We've already had one war on this general concept. We don't need another.

    So good luck to you and Ken Ivory on these issues. I just don't think you're going to get the Supreme Court to reverse itself or the support of the vast majority of US Citizens.

  11. I am making no assumptions. My statements are supported by S. Court opinions, Court dicta, commentary of the Framers, and actions of the Continental Congress and the Constitutional Convention. I have to wonder where you have obtained your "facts" such as Virginia extending to the Pacific. Please!
    The Constitution is a compact among all of the several states. State enabling acts are compacts between the people of a defined territory and the several states sitting as the United States in Congress assembled.
    The Civil War is irrelevant to this discussion although I suspect that you will insist otherwise. This war is a common "red herring" thrown up by anti-federalists and other statists who reject any notion, in Madison's words, of a "residuary and inviolable sovereignty" in the individual states. State enabling act compacts were by no means obviated by it.
    I see that you are giving up on learning anything that does not comport with your present level of understanding. Too bad that you are comfortable with being half right. This being the case, I have to wonder why you bother with a blog if not to increase understanding. I had hoped that our conversation would proceed on an intellectual plain but, alas, "moderation" appears to preclude such. I'll be interested to see if you publish this final exchange.

  12. Yes, Anonymous. I published your "final" exchange. Readers of this blog may judge for themselves.

    Oh, and:
    "we do also of our special Grace... give, grant and confirm, unto the said Treasurer and Company, and their Successors... all those Lands, Countries, and Territories, situate, lying, and being in that Part of America, called Virginia, from the Point of Land,from the pointe of lande called Cape or Pointe Comfort all alonge the seacoste to the northward two hundred miles and from the said pointe of Cape Comfort all alonge the sea coast to the southward twoe hundred miles; and all that space and circuit of lande lieinge from the sea coaste of the precinct aforesaid upp unto the lande, throughoute, from sea to sea, west and northwest; and also all the island beinge within one hundred miles alonge the coaste of bothe seas of the precincte aforesaid." 1609 Second Charter, James I to the Virginia Company, found at:

  13. You cite the 1609 king James I charter. However, by the time of the American Revolution of 1776, 167 years later, the declared State of Virginia (as opposed to the revokable kings Virginia charter which was by this time irrelevant) claimed only to the Mississippi.
    Good day.

  14. I just filled out the legislative survey for Roger Barrus my Utah State Representative. I don't think that Congress entered into a "compact" at Utah Statehood to "dispose" of all the public lands. But if they did, I think we should fulfill that right after we restore all the lands we promised to the Native Americans.


Comments are welcome. Feel free to disagree as many do. You can even be passionate (in moderation). Comments that contain offensive language, too many caps, conspiracy theories, gratuitous Mormon bashing, personal attacks on others who comment, or commercial solicitations- I send to spam. This is a troll-free zone. Charity always!