In March, Gov. Gary Herbert signed the Transfer of Public Lands Act, setting up a midnight showdown with the federal government. By midnight on Dec. 31, 2013, the act states, the United States must convey, free of charge, millions of acres of land held in federal ownership for generations.
If the federal government refuses, litigation is authorized, and Utah faces the United States of America in court. And if the federal government capitulates, the act offers no plan for state management of the lands, only creation of a study council.
The current government contends that this act is the silver bullet that will save Utah's abysmal education funding. In reality, it is simply an end-run around the facts: Utah's public education is underfunded because hundreds of millions in school dollars are annually diverted to other projects, primarily transportation and roads.
The press touted the act as another "Sagebrush Rebellion." In fact, it is legally and historically indefensible and will not initiate positive change or provide needed fiscal relief for our public schools.
Prior even to the act's approval, the office of legislative counsel cited the "Property Clause" of the U.S. Constitution and warned both the governor and Legislature that the act has "a high probability of being declared unconstitutional." The Legislature and governor, though, were too interested in making a political "statement" to listen.
Nevada enacted similar legislation in 1979, declaring all public domain lands in Nevada to be state property based on implicit understandings at the time of statehood — an argument strikingly similar to the rationale underlying the Utah act. The courts refused to take the measure seriously. Apparently the current Utah Legislature and administration will heed neither sound legal counsel nor the lessons of history.
They also show little interest in the damage that the act inflicts on Utah's economy. However objectionable the fact may be, federal funding has subsidized grazing rights over federal lands for decades, assisting Utah's ranchers. Federal protection of public lands from private exploitation has fostered Utah's flourishing tourism — a fact punctuated by the Outdoor Retailers' threat to pull its convention from the state. No thought is given to how Utah will replace the reserves offered by such agencies as the United States Forest Service's $5.5 billion budget devoted to, among other things, wildfire control.
We need to learn the real lessons of the 1980s Sagebrush Rebellion. While that movement also saw its share of confrontational absolutism, Gov. Scott Matheson commissioned a 1981 study demonstrating that outright transfer of federal lands to Utah would result in millions of dollars in net operating losses. Utah opted for a smart, tough approach to the public lands issue, which emphasized both the critical role of state independence and oversight, and the benefits of federal cooperation.
Efforts at striking that balance ultimately led to the Department of Interior's "good neighbor" policy which provided for measured transfers of some federal holdings, and more responsive federal management of others. It can work again.6 comments on this story
Witness the initial benefits the state is reaping from the Utah School & Institutional Trust Lands (see Utah's Landscape, by former Gov. Michael O. Leavitt, Deseret News, Aug. 5, 2012). According to current figures, $300 million in school funding has been generated from these coal and gas lands.
Leavitt and other Utah governors should be applauded for their collaboration with both state and federal governments, and ranching and conservation interests. "Through negotiation with the federal government, Utah was able to trade the land-locked parcels for large blocks of resource-rich SITLA land." The key word is negotiation — not an act seeking to dictate to the federal government the disposition of federal lands. And though $300 million over 14 years is a good start, it, too, falls significantly short of what our public schools need to prosper. It is not a silver bullet. We need to do more.
Finding the proper balance between state and federal land interests needs to be an exercise in smart, tough and practical problem-solving, not political grandstanding.
Vince Rampton is a candidate for lieutenant governor on the Democratic ticket. He is a practicing attorney at the Jones Waldo law firm in Salt Lake City.