Utah prepares war chest for takeover lawsuit

By Phil Taylor | 03/11/2016 01:14 PM EST

Utah state lawmakers passed legislation yesterday establishing a dedicated funding stream for what’s expected to be a $14 million lawsuit to take control of federal lands, a major step in the state’s quest to expand access for mining, logging, grazing and drilling.

Utah state lawmakers passed legislation yesterday establishing a dedicated funding stream for what’s expected to be a $14 million lawsuit to take control of federal lands, a major step in the state’s quest to expand access for mining, logging, grazing and drilling.

Appropriators also chipped in $4.5 million for Attorney General Sean Reyes (R) to take the state’s claims to court — if he so chooses.

It’s reportedly the first time the Beehive State has provided cash for litigation to seize about 30 million federal acres, namely tracts managed by the Bureau of Land Management and Forest Service. Utah officials say they could raise more revenues from the lands for education and reduce the threat of catastrophic wildfires, all without sacrificing opportunities for outdoor recreation and conservation.


Takeover proponents see federal ownership of two-thirds of Utah land as oppressive compared with states outside the West and Alaska, where the federal government owns just 4 percent of the terrain.

"It’s just another step in our methodical journey to be treated fairly and equally," state Rep. Ken Ivory (R) said. "We can’t determine our own destiny like states east of the Rockies."

Yet conservationists and many sportsmen see Utah’s bid as a form of attempted theft. Federal lands are owned by all Americans, who are equal stakeholders in how they are managed and accessed. That would no longer be the case under Utah management.

"It’s a dark day here," said Steve Bloch, an attorney for the Southern Utah Wilderness Alliance, reacting to the new legislation. "This seems to have eclipsed my expectations for how miserable it could be."

Moreover, legal scholars — including Wyoming’s former attorney general — have concluded that Utah’s legal claims would not hold constitutional muster in a federal court.

"There’s a reason that Utah is the only state in the nation to press ahead with this legal strategy," Bloch said. "It will fail."

Utah conservatives believe otherwise.

The bill, H.B. 287, passed the state Senate on a 20-4 party-line vote, sending it to Gov. Gary Herbert (R) for his signature. The Senate consists of five Democrats and 24 Republicans.

It would create an account within the state’s General Fund called the "Public Lands Litigation Restricted Account."

The Legislature may appropriate money from the account for "asserting, defending, or litigating state and local government rights to the disposition and use of federal lands within the state as those rights are granted by the United States Constitution, the Utah Enabling Act and other applicable law."

The bill also would create a "special revenue fund" for private entities to donate to Utah’s legal efforts to claim federal lands.

Reyes has not decided whether he wants to file a lawsuit.

In December, Davillier Law Group LLC of New Orleans released a state-commissioned legal analysis finding that there are "legitimate legal theories" to suggest the state could succeed in gaining control of federal tracts, but that a lawsuit would be time-consuming and cost up to $14 million.

"The federal government will most likely vigorously oppose this effort, raising substantive and procedural hurdles to achieving such an outcome," the report notes. "We envision the possibility of numerous intervening [conservation groups] that may increase the cost of the potential litigation."

Utah’s legislative Commission for the Stewardship of Public Lands has instructed Davillier to craft a complaint that could be brought before the Supreme Court. The panel is set to discuss a draft complaint in April or May, Ivory said.

He said there’s no set timeline for Utah to take legal action.

"This problem is 100 years in the making," he said. "The biggest concern is we’re going to make sure we get it right."

Several legal paths

The Davillier analysis argues that Utah could use multiple legal routes to claim lands.

One assumes that the U.S. Constitution guarantees all states equal powers when admitted to the nation. It suggests Utah could challenge the Federal Land Policy and Management Act of 1976 (FLPMA), which halted the federal government’s century-old practice of disposing of lands to states and settlers, leaving Western states with the lion’s share of federal lands.

Another path, which Davillier refers to as the "compact theory," sees the state’s enabling legislation containing an implicit "duty of the United States to timely dispose of the public lands within Utah’s borders as it had done with states admitted prior to Utah."

It’s worth noting that none of these legal theories has prevailed before.

A 2014 legal review by professor Robert Keiter and research associate John Ruple of the University of Utah found that Utah’s 1894 Enabling Act created no obligation for the federal government to dispose of federal lands, nor an obligation to sell all of them.

It also disputed claims that the constitutional "Equal Footing" doctrine means Utah and other states are owed federal lands. The review cited one ruling by the 9th U.S. Circuit Court of Appeals in 1997 that rejected Nevada rancher Cliff Gardner’s claims that the government cannot retain ownership of Western lands.

"While these disparities may cause economic differences between the states, the purpose of the Equal Footing Doctrine is not to eradicate all diversity among states but rather to establish equality among the states with regards to political standing and sovereignty," the court ruled.

The Davillier team acknowledged this defeat, but it argued that the preponderance of federal lands in the West impedes a state’s ability to grow its population, which restricts its political power in Washington, D.C.

"We believe this is a legal question that should go before the Supreme Court," said Michael Swenson, a public lands lobbyist who represents groups in Utah and Nevada. "Do we have the same fair shot at the American dream and opportunities?"

The Utah Legislature yesterday also gave final approval to a bill that would establish a framework for managing federal lands once they are transferred to the state. It is seen as a state corollary to FLPMA, which guides BLM’s management of its 250-million-acre estate.

"It will be managed for multiple uses and sustained yield," in sort of an "all of the above" approach for ranching, mining, grazing and wilderness, bill sponsor Rep. Mike Noel (R) said in an earlier hearing, according to The Salt Lake Tribune.

Utah looks for partners

So far, Utah has been the most aggressive state in challenging federal domain.

It has struggled to find other states to join its legal gambit.

Last month, two Republican Utah state lawmakers, Sen. David Hinkins and Rep. Keven Stratton, traveled to Boise to speak before a joint Idaho legislative panel, according to the Idaho Statesman. But the auditorium in the Idaho Capitol was filled with an overflow crowd of hunters, anglers, conservationists and others opposed to the idea of transferring the public lands from federal management, the paper reported.

In Colorado, the state’s Republican-controlled Senate last week passed a bill 28-7 to designate the third Saturday in May as a state holiday known as "Public Lands Day." It says public lands are "defining features of the state and are a foundation for our quality of life."

Conservationists said the bill is the first of its kind in Western statehouses, though they plan to fight language inserted by conservative lawmakers that questions the president’s use of the Antiquities Act and urges more "proactive management" to gird landscapes against pests and fires.

"We have a fairly strong sentiment here, not universal, but a strong sentiment in favor of public lands," said Colorado Gov. John Hickenlooper (D), whose administration supports designation of a Public Lands Day.

"That notion of public lands that are protected forever and have a variety of safeguards, I think that’s deeply held in Colorado, and I think there is a bipartisan sense that you can celebrate public lands."