Kochan on Utah's “Transfer of Public Lands Act"

Donald Kochan (Chapman) has posted A Legal Overview of Utah's H.B. 148 – The Transfer of Public Lands Act on SSRN.  Here's the abstract:

Recent legislation passed in March 2012 in the State of Utah – the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to House Bill 148 (“H.B. 148”) – has demanded that the federal government, by December 31, 2014, “extinguish title” to certain public lands that the federal government currently holds (totaling an estimated more than 20 million acres). It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer.

The State of Utah claims that the federal government made promises to it (at statehood when the federal government obtained the lands) that the federal ownership would be of limited duration and that the bulk of those lands would be timely disposed of by the federal government into private ownership or otherwise returned to the State. Longstanding precedents support the theory that Utah’s Enabling Act is a bilateral compact between the State and the federal government that should be treated like it is, and interpreted as, a binding contractual agreement.

As Utah’s Governor Herbert has noted, the legal case for H.B. 148 may not be a “slam dunk,” but there are credible legal arguments supporting Utah’s demand that the federal government extinguish certain public lands within the State. At the very least, it seems clear that the law is not “clearly” unconstitutional as some opponents contend. Much of what is being discussed as “precedent” against the TPLA is dicta.

Utah’s TPLA presents fascinating issues for the areas of public lands, natural resources, federalism, contracts, and constitutional law. It represents a new chapter in the long book of wrangling between states in the west and the federal government over natural resources and public lands ownership, control, and management. The impact is potentially considerable – thirty-one percent of our nation’s lands are owned by the federal government and 63.9 percent of the lands in Utah are owned by the federal government.

This White Paper provides an overview of the legal arguments on both sides of the TPLA debate. In the end, there is a credible case that rules of construction favor an interpretation of the Utah Enabling Act that includes some form of a duty to dispose on the part of the federal government. Other theories may also support the TPLA. At a minimum, the legal arguments in favor of the TPLA are serious and, if taken seriously, the TPLA presents an opportunity for further clarification of public lands law and the relationship between the states and the federal government regarding those lands. Moreover, as other states are exploring similar avenues to assert their claims vis-à-vis the federal government and are in various stages of developing land transfer strategies that will model or learn from the TPLA. That fact further underscores the need for a renewed serious and informed legal discussion on the issues related to disposal obligations of the federal government. This White Paper takes a first step into that discussion.

Steve Clowney