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Legal analysis supports Utah's law on getting federal land

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  • Bob Pomeroy Bisbee, AZ
    Dec. 13, 2013 12:00 p.m.

    The headline is very misleading. Law, and legal 'opinions' are inherently 'arguments', not statements of fact

  • JosephSmith4ever Spanisfork, UT
    Dec. 12, 2013 4:45 p.m.

    Its not absurd for the feds to own so much of Utah's land. Most of land owned by the feds is land we all like, such as our mountains and national parks, or is land that no one wants and that not much can be done with, like much of the desert non-mountainous valley regions in the western half of the state. Of course Utah will sell the land, the whole point for Utah getting this land is to sell it to then have a constant stream of property taxes to fund state services. No they will not manage the land better than the federal government. Land controlled by the national forest service and BLM land just outside of National parks is included in HB 148 demands from the federal government. If Utah controlled these lands they would be sold to energy companies to drill for oil just outside of our national parks and to resort developers and millionaires to turn Utah's mountains into gigantic visually polluting Euro-style ski resort with trams and Gondolas crisscrossing every which way and into private non-publicly accessible luxury log cabin estates for the super rich.

  • Ernest T. Bass Bountiful, UT
    Dec. 10, 2013 7:07 p.m.

    @NT: Why do you think the state would be better than the feds?

  • Rawhide Kid Sevier County, UT
    Dec. 10, 2013 1:21 p.m.

    There surely is some positive reasons for the state to manage this land as it could be done so much more effectively under state law than the complying with all federal laws that overlap each other and create conflict and inefficiencies.
    There is constant litigation on the federal level and its obvious the Feds. can't get anything done. Just look at the unhealthy conditions of our forests and the damage to our watersheds. The feds did restore the damage of early settlement, but now they are going the wrong direction.

  • RedShirtMIT Cambridge, MA
    Dec. 10, 2013 12:27 p.m.

    To "slave" the upkeep of the lands would be paid for by the royalties and fees collected by the people who use the land. For example, when minerals and oil are extracted from the ground, the government gets up to 18% of the value as royalties. The same is done for lumber. Ranchers and shepards pay a fee to run their animals on forest land.

    All of the fees and royalties would remain in Utah, and could maintain the funding needed for those lands.

  • scorealot ,
    Dec. 10, 2013 9:23 a.m.

    Asking a lefty to comment on the land issue is liking asking Donald Duck for advice. They rarely understand the constitution or the history of the Enabling Acts of each state. Many of the "western" states started out just like Utah with their land owned by the Feds. But, instead of allowing the Feds to keep their land, they PETITIONED CONSTANTLY to get the Feds to dispose of the land as PROMISED in the ENABLING ACT. They eventually won. Those western states were the likes of Illinois and Kentucky. HMMMM.

    Why then and not now?

  • Transaction7 Commerce, Texas
    Dec. 10, 2013 8:42 a.m.

    I understand the desire of western states, created out of what had been federal land, to gain control over lands reserved by the federal government, but the question is how the Supreme Court of the U. S. would respond to such a claim. The question would be controlled entirely by the federal law creating the state, including any reservation of federal land within its borders to the federal government. Any right not explicitly reserved to the state in the acts of admission of these states simply would not survive the creation of the states. This is not controlled by state law, nor by the Tenth Amendment; it is a simple matter of real estate law. Furthermore, the federal government's long judicially established sovereign immunity would bar suit to recover title to such lands unless Congress gave its consent to the suit, which will never happen. NO good lawyer would take this case.

  • cookslc Cottonwood Heights, UT
    Dec. 10, 2013 7:00 a.m.

    It appears credence is given to the position because of the opinion of a "constitutional scholar." For that reason, and with respect to counsel, six years in practice, apparently outside of a teaching construct, does not a constitutional scholar make. Further, I would suggest the error in her analysis occurs in misinterpreting that the phrase the United States hold title “until the title thereto shall have been extinguished by the United States.” She interprets this as imposing a duty on the US Government to dispose of the land at some point. I take the exact opposite view when combining that phrase with the promise of Utah to “forever disclaim all right and title” in the state’s Enabling Act. I do not see how to overcome the very strong language to which Utah agreed.

  • Kalindra Salt Lake City, Utah
    Dec. 10, 2013 3:08 a.m.

    From the Enabling Act: "Second. That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; ... and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States,...."

    It is pretty straight forward - as a condition of statehood, Utah gave up the claim to unappropriated lands within its borders.

    The United States federal government acquired the land from Mexico, part of it was marked out as the territory of Utah, when Utah applied to become a state the federal government ceded some of the land to Utah but retained the rights to the rest of the land.

    It was different with the states east of the Mississippi because the colonies acguired ownership of that land as part if the Revolutionary War and prior to the formation of the United States. As they joined the United States they retained their ownership of the land within their boundaries.

  • l.cee Ridgefield, WA
    Dec. 9, 2013 11:11 p.m.

    The reporter should have asked the lawyer for why Federal ownership of the land is unconstitutional or should have read through the Sutherland report/analysis and given their examples. Otherwise it is just reporting on opinions which is pretty empty reporting.

  • Back Talk Federal Way, WA
    Dec. 9, 2013 10:31 p.m.

    Didnt Obama say the "income inequality" the premier issue facing the USA? Maybe that idea could be considered when comparing how other states were treated with regard to land.

    If Utah could get this land, would they guarantee not to sell it?

  • NT SomewhereIn, UT
    Dec. 9, 2013 10:12 p.m.

    @Ernest T. Bass

    "Who really believes the state of Utah legislators would be better stewards than the feds?"

    Me. I do.

    That said, I do NOT like the idea of any public land being sold to private entities.

  • worf Mcallen, TX
    Dec. 9, 2013 10:07 p.m.

    Where do the feds get it's money?

    How have they managed the money they tax from us?

    Only a fool would think the feds could out manage state parks. Their passed history is horrible.

  • NT SomewhereIn, UT
    Dec. 9, 2013 10:07 p.m.

    @slave

    "My question is how the state of Utah would pay for the upkeep of this land. "

    Answer: much more efficiently.

  • John Locke Ivins, , UT
    Dec. 9, 2013 10:05 p.m.

    I believe that there is a middle ground for this issue, which can be debated by reasonable people, without reference to ideology or political agendas.

    Those lands on which minerals and oil and other fruits of the land, which enhance society and produce jobs, should belong to the state of Utah, and could be gradually developed at a rational pace, over decades. The protection of the land in its development, would be a main priority.

    As for wilderness and wild life areas, rivers and streams and forest areas, they could be set aside by laws by the state itself, for preservation in perpetuity, for all generations to enjoy.

    Land doesn't have to be "owned" by the federal government to protect it. States are not children. Yes, Utah or other western states in a similar position, would have to find a way to maintain the land as well as protect it from development by those who would pour cement or asphalt over anything for a profit.

    I love Utah and we need to retain its beauty and charm for all generations to come. We can and should do this as a state, without government parental-like interference.

  • Supercool11 R-Valley, NV
    Dec. 9, 2013 9:22 p.m.

    Turning the land from federal to state control still leaves the land in government hands. It would be preferable for that land to go to private ownership to add to the tax base, and so the state wouldn't be burdened with upkeep.

    The state of Utah may legally be within its rights, but ask any Indian tribe how the federal government is at honoring agreements more than 100 years old.

  • Ernest T. Bass Bountiful, UT
    Dec. 9, 2013 8:51 p.m.

    Who decided this has 'strong legal footing'? Nothing could be further from the truth.
    The State never owned the land.
    The feds stole it from the natives. The state wants to steal it from the feds.
    Who really believes the state of Utah legislators would be better stewards than the feds? The LAST thing we need is for the legislators to take over. At that point the land will truly become locked up with no access for anyone but the millions who buy it for pennies on the dollar.

  • RJL Hyde Park, UT
    Dec. 9, 2013 5:59 p.m.

    Considering the consensus of government attorneys on the unconstitutionality of legal arguments based on the Enabling Act, it seems unlikely that the legal arguments of succeed. This is especially true because of enormous consequences of a court decision in favor of it, which may cause justices to hesitate. Such a ruling would require that federal government to sell off all land it owned during the creation of every state that mentions such possible sales in their Enabling Acts. This would radically alter the economic and political landscape of the United States.
    It also would be unlikely to meet the goals of advocates. They want the public lands given to them, not sold, but the Enabling Acts mention only sales. If states are not willing to buy them, the result may be massive privatization of lands. This runs counter to what advocates say they want, which is state management of the lands.

  • Jeff W. El Paso Co, CO
    Dec. 9, 2013 5:51 p.m.

    Do you have a link to the actual analysis? I couldn't find one on the Sutherland Site.

    Thanks.

  • Powderski Provo, UT
    Dec. 9, 2013 5:47 p.m.

    Asking the Sutherland Institute to comment on Federal Lands transfer is like asking a coyote to comment on chicken coop management.

    These right-wingers can't even spell, let alone understand constitutional law. Here's is a verbatim statement from their web site statement on their core principles: "RELIGION | as the Moral Compass of Human Progeess." Obviously public school attendance is not one of the core principles of the Sutherland Institute.

    Utah can't even fund or manage their own state parks. Grabbing federal land may be a pipe dream for moonshiners, militias, and anti-government fascists, but it is wrong-headed and will clearly not survive any constitutional test.

  • worf Mcallen, TX
    Dec. 9, 2013 5:18 p.m.

    @slave--what makes the feds better stewards of the land?

    Like taxes, they're better at spending our money:

    * fighter jets, helicopters, tanks, and nuclear technology, to other countries
    * seventeen trillion dollar debt
    * lavish vacations
    * losing the war on poverty
    * stimulus package yielding no shovel ready jobs
    * millions to Solyndra, and no new solar panels

  • justamacguy Manti, UT
    Dec. 9, 2013 5:15 p.m.

    @slave. The lands that SITLA has sold off were of no use to them because they were landlocked by Federal Ground which basically made them useless for grazing, mining or recreation. With larger blocks of land the management would become more practical. It would be a great advantage to wildlife to have the state, who owns the wildlife, to manage the habitat for that wildlife instead of the Fed's who could care less if the state has a deer herd. It would eliminate the radical environmentalist from filing law suits every time you wanted to do something positive for the range or forest lands. And with the proper use of the resources the state would have little problem paying for administering these lands when the revenue from recreation, minerals and forests comes back to the state.

  • Utah_1 Salt Lake City, UT
    Dec. 9, 2013 5:10 p.m.

    "slave"
    Utah Constitution, Art. 18 and 20 define what happens to the land if we get it. That said, under WILSON V. COOK, 327 U. S. 474 (1946), Utah can already make money of anything removed from any public land, whether "claimed" by the feds or not. The feds are doing a poor job of managing our forests and we could do a better job. There is enough money that could be generated to take care of the land. Rep. Ivory's bill left on the table the national parks, etc. The feds would still borrow money from China to keep them up.

  • Beaver Native St. George, UT
    Dec. 9, 2013 5:05 p.m.

    Utah's land grab would have the effect of taking away some of the ranchers' grazing privileges. Lots of prime BLM and forest grazing land would be sold to developers and investors. It's a losing situation from the perspective of the small, struggling cattle farmers. Glad my family no longer has to rely on the whims of the State. Again, the rich would benefit from taking from the poor.

  • djc Stansbury Park, Ut
    Dec. 9, 2013 5:04 p.m.

    Rather a misleading headline, perhaps if you had correctly identified the "legal analysis" as coming from a notoriously right wing anti-federal government organization; and stated that this is what would be expected from someone in this organization then the headline and attached article would have been been presented. To make it seem a big surprise that someone from the Sutherland Institute, whose charter says that Limited Government is a reflection of good government. Newspapers printing stuff like this as news is very disturbing

  • Bebyebe UUU, UT
    Dec. 9, 2013 5:05 p.m.

    No transfer to Utah. The local culture has no respect for it. They'll turn it over to mining or other corporate interest which will trash it. Then the state will go to the federal government groveling for funds to clean it up.

    gittalopctbi, being in the state border doesn't make it 'Utah land'.

  • 10CC Bountiful, UT
    Dec. 9, 2013 5:03 p.m.

    Much of the land in the West was acquired by war, by conquest.

    What we know today as Utah was acquired by the US as a result of the Mexican-American war, in 1848. When LDS settlers entered the Salt Lake Valley in 1847, this land was part of Mexico, specifically part of an expansive area known as "Alta California", or "Upper California".

    Utah was obviously not a state at the time of acquisition - that did not occur until 48 years later, in 1896. So this land was acquired by the United States, as a byproduct of war.

    How Utah, Nevada, Colorado and Arizona were acquired is vastly different than how Virginia, or Pennsylvania were acquired, from a legal standpoint.

    From a constitutional standpoint, I suppose you could make the case that Utah should not be in the US, since as Mike Richards points out, there is no provision in the Constitution for the method by which Utah was acquired, or perhaps for federal ownership of any land.

    (The Louisiana Purchase was likewise unconstitutional, but I seriously doubt the residents of 15 states are going to allow it to be returned to France.)

  • Fred44 Salt Lake City, Utah
    Dec. 9, 2013 5:03 p.m.

    I got excited till I read the Sutherland Institute was behind this legal opinion. I thought it was someone with a understanding of real world law.

  • Utah_1 Salt Lake City, UT
    Dec. 9, 2013 5:02 p.m.

    Why Art. 1, 8, 17 was created: (from minutes from the constitutional convention)

    On the residue, to wit, "to exercise like authority over all places purchased for forts &c.

    Mr Gerry contended that this power might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the Genl. Government--

    Mr. King thought himself the provision unnecessary, the power being already involved: but would move to insert after the word "purchased" the words "by the consent of the Legislature of the State" This would certainly make the power safe.

    See also the 10th amendment and also the following land cases
    WILSON V. COOK, 327 U. S. 474 (1946), UTAH DIV. OF STATE LANDS V. UNITED STATES, 482 U. S. 193 (1987), HAWAII ET AL. v. OFFICE OF HAWAIIAN AFFAIRS ET AL., UNITED STATES V. SIOUX NATION OF INDIANS, 448 U. S. 371 (1980), FORT LEAVENWORTH R. CO. V. LOWE, 114 U. S. 525 (1885), POLLARD'S LESSEE V. HAGAN, 44 U. S. 212 (1845)

  • Wisconsin Moderate GREENDALE, WI
    Dec. 9, 2013 5:00 p.m.

    The right wing Sutherland Institute is funded by corporations who would love to get their hands on this land. There is profit involved and they will be tireless in promoting this. Be careful.

  • MormonDemocrat Salt Lake City, UT
    Dec. 9, 2013 4:56 p.m.

    Sutherland's "consitutional scholar" graduated in 2007 from Wake Forest Law School, which just edges out Utah and BYU in the US News & Worl Report Top 40. It appears she runs her own firm in Arizona (not exactly the center of consitutional jurisprudence). Not saying she is not a smart woman, but that resume does not blow me away.

  • scrappy do DRAPER, UT
    Dec. 9, 2013 4:53 p.m.

    you pay a lawyer a few bucks and he will say anything to show you have legal standing... just ask John Swallow, he will set you straight on that one

  • Petra Sanpete County, UT
    Dec. 9, 2013 4:32 p.m.

    The Sutherland Institute? That's a political organization, not a research organization. We may not like it, but that land belongs to the Feds and was made that way as a condition if statehood. Unless Utah would rather be absorbed by the neighboring states.....(in which case, that land would still belong to the Feds....).

  • gittalopctbi Glendale, AZ
    Dec. 9, 2013 4:25 p.m.

    Yes, but the feds control 2/3rds of Utah land?!! That's absurd.

  • slave American Fork, UT
    Dec. 9, 2013 4:16 p.m.

    My question is how the state of Utah would pay for the upkeep of this land. The history the state has put out is that they sell to the highest bidder when it comes to what once was public federal land swapped to free up closed parcels of education land. I find it interesting that Utah wants to control the land without the means to be good stewards of the land. We claim the ability to be self-sufficient but in reality more than half of the governor’s 2014 budget is Federal tax dollars. Only way the state could even come close to managing the land would be to sell it. The really sad part is that it would all end up being sold to foreign investors. Not America anymore.

  • Mike Richards South Jordan, Utah
    Dec. 9, 2013 4:12 p.m.

    How can other States claim land in Utah? The Constitution does not allow State to "subdivided". How can the Federal Government claim ownership? The Constitution only allows the Federal Government to "own" the small District of Columbia.

  • Wanderer West Jordan, UT
    Dec. 9, 2013 3:55 p.m.

    When you look at maps of eastern states and see how little of each state is controlled or "owned" by federal agencies and departments, and then look at maps of Utah and other western states and see how much is under federal control, you begin to wonder where the rationale for such inequality is coming from. Perhaps this law is moving in the right direction.

  • EJM Herriman, UT
    Dec. 9, 2013 2:58 p.m.

    It will never happen. You can have all the legal analysis you want but the Feds will not give "back" the land. But thank goodness for the Sutherland people. This makes for good entertainment.