The headline is very misleading. Law, and legal 'opinions' are
inherently 'arguments', not statements of fact
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.
@NT: Why do you think the state would be better than the feds?
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.
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
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
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.
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.
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.
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.
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?
@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
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.
@slave"My question is how the state of Utah would pay for the
upkeep of this land. "Answer: much more efficiently.
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
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.
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.
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.
Do you have a link to the actual analysis? I couldn't find one on the
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.
@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
@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
"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
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.
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
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
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.)
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.
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 casesWILSON 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)
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.
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.
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
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
Yes, but the feds control 2/3rds of Utah land?!! That's absurd.
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.
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.
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.
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.