Salt Lake City, UT – At the opening of the legislative session in 1915, Utah Governor William Spry complained about the federal government's reluctance to turn over land to the state that could be used for oil and gas development. He urged lawmakers to protest a federal policy that he said was violating Utah's "undoubted right under the terms of the enabling act" to land with high revenue potential for public schools.
Utah's Enabling Act was passed in 1894, two years before statehood. It required the citizens of Utah to write and adopt a state constitution, and it also insisted they give up claims to huge areas of land within Utah's borders. The legal question today is whether that legislation also included a promise to surrender that land to private control and give the state a portion of the proceeds to help fund its public schools.
Republican State Representative Ken Ivory insists that it does. His House Bill 148 is one of a package of four bills meant to hold the federal government to that promise.
Ivory explained the provisions of the bill during debate on the House floor. "Under this bill," he said, "we will set a deadline of December 31st, 2014 for the federal government to transfer title to those lands, as they committed to do, to honor that promise that they committed to us in 1896. We establish a public lands commission to manage the multiple use and the sustained yield of those lands for the future of our children and the future of our state in this critical time."
If the federal government fails to meet that deadline, other bills in the package put it on notice that the state will take the issue to court. Arguing the case will fall to the Utah Attorney General's office.
Chief Deputy Attorney General John Swallow head's the Attorney General's civil division. He's also a Republican candidate for the top job.
Swallow says Utah has some recent Supreme Court precedents on its side. "Recently, in Hawaii, I think it was a 2009 case, the Supreme Court, the issue there was, in the Enabling Act, lands were actually given back to the state of Hawaii in their Enabling Act." Swallow continued,"Congress passed a law that was changing some of the deal that was given to the state at the time they became a state. And the Supreme Court, in I think it was a unanimous decision, came back and said, Whatever Congress does after the Enabling Act, the act that a state relies on to become a state, whatever they do subsequently cannot impact the essence of the benefit of the bargain the state received.'"
The legislature's own Office of Legislative Research and General Counsel is among the skeptical voices. Its analysis of the bills cites a case from the 1970's, Kleppe v. New Mexico, that established the exclusive authority of Congress to make the laws for public lands in the West.
University of Utah law professor Bob Keiter also believes the backers of these bills are grasping at legal straws. "All of the precedents that you've suggested including provisions in the state enabling legislation, Supreme Court cases of Kleppe v. New Mexico, the property clause in the United States Constitution, other Supreme Court and lower federal court precedent, all suggest that Congress has broad authority to make these types of decisions regarding the public lands."
Another significant legal question is this: Has Utah waited too long to make these claims? After all, it's been 116 years since statehood. Deputy Attorney General John Swallow says that could be among the arguments that he'll have to deal with.
But Swallow also says recent decisions by the Obama Administration on oil shale, wild lands and uranium mining in the West have given a new urgency to these challenges. "We see this really, fairly recent, restrictive administration on public lands usage which I think has brought this real energy to this discussion and really highlighted the long-term breach by the federal government under the Enabling Act,"
If a court challenge to the federal government really is the legal long shot that skeptics believe it is, then why pass these bills in the first place? Democratic State Representative Brian King argued that it's far less a legal issue than a political one.
During debate on the House floor, King called the whole strategy a "gimmick." "So . . . we believe that any federal court is really going to give over to Utah all federal lands? Now I know, and you know, Madame Speaker, that ain't happenin'. It ain't happenin'. We all know it's not happenin'."
Whether it happens or not, the battle is likely to be expensive. This year's budget provides $350,000 for the Constitutional Defense Council, which will manage the issues raised by these bills until they go to court. A separate measure, House Bill 482, could divert as much as six million dollars a year from the state's severance taxes to the council to help fund the legal challenge.
The four bills in the package passed the House on mostly party-line votes. The Utah Senate could take them up as soon as today.
And if he could have looked almost a hundred years into the future, what would Governor Spry have thought of this debate? Like today's legislators, he was concerned about an overreaching federal government. But he was also practical. "Be not carried from the path of your real duty in the pursuit of theories in legislation," he said. "Remember that a measure may be perfect in theory but useless in fact."
Spry quotes from House Journal: Eleventh Session of the Legislature of the State of Utah, pp. 31, 46