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State Lawmakers Are Urging Utah To Bring Public Land Transfer Case To The Supreme Court

Picture of a woman holding a sign that reads "keep public lands in public hands"
Kate Groetzinger
/
KUER
A demonstrator holds up a sign opposing public land transfer at a hearing held by U.S. Rep. Mike Lee, R-Utah, in Moab on Sept. 9, 2019.

Support for the land transfer movement, which promotes shifting federal public land to state control, has flagged in recent years. 

But one right-wing organization that champions the cause is asking the State of Utah to fund a new approach to force the federal government to relinquish public land.

The American Lands Council, started by former State Rep. Ken Ivory in 2012, is asking state leaders to bring the question of whether the state can take control of federal public land to the U.S. Supreme Court. And it’s asking for $50,000 to generate public support for the effort. 

Rep. Phil Lyman, R-Blanding, is sponsoring the appropriations request in the Utah Legislature. He said the money will help the American Lands Council educate residents of western states about the need to bring a land transfer case to the U.S. Supreme Court. 

“It’s to frame the case,” he said. “To make people aware of it, so when it comes up it’s not out of the blue.”

A 17-member state advisory panel called the Constitutional Defense Council voted earlier this year to direct the Governor’s Office, the attorney general and the Legislature to work together toward a “judicial resolution” of the land transfer question. 

At a meeting in January, State Rep. Brian King, D-Salt Lake City, said he opposes the transfer of public land to the state but that it’s time to resolve the issue.

“This is a losing argument,” he said. “But I don’t think we can move on to more productive winning arguments unless we get rid of an argument that many, many people have latched onto.”

In 2016, the Legislature set aside $4 million for the state to sue the federal government over its control of public lands. In 2018, Utah Attorney General Sean Reyes told lawmakers he was working on a lawsuit, but he has not filed it yet. 

Ric Cantrell, Reyes’ chief of staff, said the Attorney General’s Office is working with the Governor’s Office, Utah’s congressional delegation and the Legislature to explore other avenues to increase state management of federal public land. But a lawsuit is still an option.

“There are several irons in the fire,” he said. “The lawsuit is one of them. It’s still on the table, but we may not use it.”

The American Lands Council did not respond to a request for comment from KUER. 

Land Transfer Losing Steam

Interest in transferring federal public lands to state control has largely died out under the Trump administration.

At its height in 2015, the American Lands Council brought in over $330,000 in membership fees from counties and other entities, in addition to other contributions. In 2018, the latest year for which tax records are available, the group brought in only $84,000.

University of Utah Law Professor Bob Keiter, who specializes in public lands, said that’s likely because there’s slight legal justification for the land transfer argument. A 2016 study by the Conference of Western Attorneys General analyzed arguments used to support the theory that the federal government lacks the authority to own certain public land and found little evidence to support them. 

The outcome of the 2016 election has also contributed to states’ waning interest in taking over federal public lands, Keiter said. The Trump administration has promoted economic development on public land, while the Obama administration focused more on conservation. 

“Initially, when this theory surfaced and Utah started pursuing it, there was interest in other Western states. But upon investigating the legal theory and the economic ramifications of such a transfer, it became evident to most states that this was probably not a good idea,” Keiter said. “So it’s a bit of a surprise that the idea of litigation has surfaced again.”

Original Jurisdiction

The cheapest way to settle the legal question of whether states can take public lands from the federal government is to go straight to the U.S. Supreme Court, which has original jurisdiction in any case involving states and the federal government. The court can choose to hear a case over which it has original jurisdiction, or it can refuse, sending the case to a lower court to work its way up through the legal system. 

A 2015 study commissioned by the Utah Legislature that looked into the legal basis for the transfer of public lands to the state found that going through the lower courts could cost as much as $14 million. The study instead suggested the state seek a judgement from the Supreme Court, through original jurisdiction. 

But Keiter said the Supreme Court is unlikely to take the case. 

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