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THE DAILY ASTORIAN • FRIDAY, FEBRUARY 19, 2016
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Utah plans court battle
to loosen Uncle Sam’s
grip on public land
By JOHN O’CONNELL
Capital Press
SALT LAKE CITY — Utah state Rep. Ken
Ivory is on the front line of an approaching legal
battle to wrestle millions of acres of land from
federal control, and legislators in other Western
states are intently watching his progress.
The Republican says Western economies
have long been held hostage by the federal gov-
ernment — roughly 47 percent of the land in the
11 Western states and 61 percent of Alaska are
under federal control, compared with 4 percent
in the other states. Si[ty-¿ ve percent of Utah is
federal land.
“We have an opportunity that is akin to a
modern-day Louisiana Purchase,” said Ivory,
founder of the American Lands Council, which
aims to sue the U.S. government seeking the
transfer of federal lands to state control. “We’re
prepared to do whatever it takes.”
Ivory wants to take Utah’s legal case to the
U.S. Supreme Court before the end of this year.
He said the armed occupation of Eastern Ore-
gon’s Malheur National Wildlife Refuge demon-
strated the level of discontent with current fed-
eral land management and the need for change.
Discontent with federal ownership of land in
the West may be widespread, but uncertainty
remains about just what to do about it. Ivory
believes that Utah’s coming legal battle could
provide the key to a solution, but others say alter-
natives are already available that give state and
local governments more say in how federal land
is managed.
Lawmakers in Idaho and other states say they
plan to let Utah “test the waters” in court and
to move forward with a similar lawsuit if their
neighbor prevails.
8tDK’V ¿ JKt
In March 2012, the Utah Legislature passed
Ivory’s Transfer of Public Lands Act, which set
a Dec. 31, 2014, deadline for the federal govern-
ment to turn over 20 million acres of federal land
to the state. Congress ignored Utah’s demands,
prompting the state to form a Legal Consulting
Services team to analyze the legal landscape.
John O’Connell/Capital Press
Utah state Rep. Ken Ivory poses outside the Pocatello field office for the U.S. Forest
Service and Bureau of Land Management. Ivory is leading the effort to force the fed-
eral government to turn over its public lands to state control.
The team published a report in December
outlining the major arguments the state will use
in court.
The report concluded, “Legitimate legal the-
ories exist to pursue litigation in an effort to gain
ownership or control of the public lands.”
The authors also warned that litigation is
costly and the outcome is uncertain, and sure to
be vigorously opposed by the federal govern-
ment. The report estimates the state will require
nearly $14 million for the legal battle.
But skeptics abound.
One of them, University of Utah associ-
ate law professor John Ruple, has co-authored
three papers on the topic, all concluding the
state’s planned lawsuit has virtually no chance
of success.
Ruple said the 11 Western states have dis-
claimer clauses in their enabling acts, promising
to forever give up federal lands.
Ruple initially brushed off Utah’s strategy
as inconsequential, until it began “spawning a
movement.”
“The fact that it was getting legs and traction
when it was so legally suspect had to be pointed
out,” Ruple said. “Somebody needed to say,
‘The emperor has no clothes.’”
Some Western lawmakers consider Ivory a
trailblazer, putting his foot down against poli-
cies that have rendered their states “second-class
citizens.”
Ivory isn’t ruling out a congressional remedy,
having found strong support for his cause from a
Republican presidential candidate.
That candidate, U.S. Sen. Ted Cruz of Texas,
introduced legislation prohibiting the federal
government from owning more than half of the
land in any state.
“I’ve been working with him to make it 50
percent in any county,” Ivory said.
The history
As the national debt continues to snowball,
Ivory emphasizes the federal government loses
27 cents for every dollar it spends on managing
public lands, while states average $14.51 in prof-
its per acre on the public lands they own.
“If you have a garden outside your back door,
are you going to be more effective at managing
that garden, or is someone who is 2,000 miles
away and has a book?” Ivory asked.
Current land ownership distribution dates
back to colonial times, when the original colo-
nies reluctantly ceded land to a centralized fed-
eral government under the Articles of Confeder-
ation. In the mid- to late 1880s, Congress passed
several laws, such as the Homestead Act, to
encourage settlement of the West.
In the 20th century, the nation’s emphasis
shifted from disposal of public lands to retention
and management. Congress declared in the Fed-
eral Land Policy and Management Act of 1976
that the remaining federal lands would generally
stay in federal ownership.
Ivory and his backers believe they’re pick-
ing up the mantle of Thomas Hart Benton, a
U.S. senator from Missouri who opposed fed-
eral ownership of 90 percent of his home state.
He started a campaign in 1823 to get federally
owned public land transfered to the states of Mis-
souri, Illinois, Arkansas, Louisiana and Florida.
“They’ve already done the exact same thing
as we’re doing today and won,” Ivory said,
though Ruple points out they achieved their
goals by winning over Congress.
According to a Congressional Research Ser-
vice report, the government has remained active
both in land acquisition and disposal, reducing
its total land holdings by 3.6 percent between
1990 and 2013.
The OeJDO DrJXPeQt
Utah’s team of experts will rely on three main
legal principles in the state’s case.
First, the U.S. Constitution mandates that
states be equal in sovereignty. The team argues
Utah isn’t treated equally given that it has no
control over nearly two-thirds of its land, thereby
limiting the state’s economic potential.
Second, under the Constitution’s Equal Foot-
ing Doctrine, the team notes newly admitted
states to the Union were guaranteed “all inci-
dents of sovereignty enjoyed by the 13 original
states.”
“Dominion over land has historically been
viewed as a key incident of sovereignty, and
denial of that dominion negatively impacts sov-
ereignty in a variety of ways,” the team’s report
reads.
Third, they argue under the “compact theory”
that the timely disposal of federal lands within
the state’s borders was implicit in the compact
establishing Utah.
They further argue that the intent of the Con-
stitution’s Property Clause was to dispose of
public lands. The clause reads, “The Congress
shall have power to dispose of and make all
needful rules and regulations respecting the ter-
ritory or other property belonging to the United
States.”
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