United States Senate Passes Amendment “Supporting” Transfer of Public Lands to States

Last week, the United States Senate passed a largely symbolic budget amendment sponsored by Alaska Senator Lisa Murkowski (chair of the Senate Energy and Natural Resources Committee) that “supports” the idea of selling, transferring or trading federally-managed public lands to the states. The idea of western states “taking back” public lands has been around since the Sagebrush Rebellion of the 1970’s, but in recent years has been gaining new momentum.   In the last 5 years, 8 states, including Utah, Wyoming, Montana, Idaho and Nevada have “studied” the feasibility of “taking back” or somehow acquiring title to the millions of acres of federally-managed public lands that were reserved to the Union at the time of statehood.

The amendment, S. A. 838 to Senate Resolution 11, is described as “establish[ing] a spending-neutral reserve fund relating to the disposal of certain Federal land,” and conveys no actual authority to transfer lands and does not cover any specific parcels or identify any states by name. Instead, the purpose of the amendment is to demonstrate that “considering such bills is a priority of the Congress” says Robert Dillon, communications director for the Senate Energy and Natural Resource Committee, as reported by High Country News.   Under the Senate authorization, the chamber’s “support” applies generally to “initiatives to sell or transfer to, or exchange with, a State or local government any Federal land that is not within the boundaries of a National Park, National Preserve, or National Monument.” Voting on the measure was largely split down party lines, with Senator Cory Gardner of Colorado as the lone Western Republican to vote no, joining all of the Western Democrats.

While the idea of states taking title to federally-managed public lands (whether through voluntary transfer or litigation) has been widely viewed as, at best, an unlikely and costly proposition, the idea has gained considerable traction in Western states with large percentages of federally-managed public lands. Utah has taken the idea the farthest, passing a law in 2012 demanding the transfer of approximately 20 million acres of federal land. In each fiscal year since 2012, the Utah legislature has allocated taxpayer money to study the issue and devise legal strategies. Most recently, in the 2015 Utah legislative session, the state passed a law allocating considerable funds to pay outside legal counsel to help devise a legal strategy and, potentially, bring litigation against the federal government. The state has recently issued an RFP soliciting bids for this work.

The issue has raised considerable debate in Utah and across the West, with most casual observers wondering about the legality and feasibility of the proposal. While the State of Utah staunchly defends the basic legality of its law authorizing the “take-back” of federal lands, most scholars disagree. According to John Ruple of the University of Utah College of Law, “The [United States] Constitution gives the federal government the authority to retain and manage that land.” Proponents of “taking back” federal lands argue that state enabling acts require federal transfer of public lands to the states. However, as stated by Mr. Ruple, states’ enabling acts do not create an obligation to “return” lands to state management; instead, in the enabling acts, “the state is disclaiming any future claims to federal lands.”

The Senate’s recent action in approving Amendment 838 does not affect the fundamental Constitutional question of state assumption of federal land. It does, however, signal a willingness on the part of the legislative branch to dive into what has, until recently, been a debate largely confined to Western state houses.

High Country News has an excellent series of articles covering the full range of the public land transfer debate:

https://www.hcn.org/articles/utah-bill-would-push-land-transfer-debate-to-federal-court

https://www.hcn.org/articles/western-states-trying-to-take-back-federal-lands-get-a-boost-from-the-u-s-senate

For the State of Utah’s position on its federal land transfer law, see:

http://publiclands.utah.gov/current-projects/transfer-of-public-lands-act/

The University of Utah College of Law’s analysis, authored by John Ruple, can be found at:

http://content.lib.utah.edu:81/cdm4/item_viewer.php?CISOROOT=/utlawrev&CISOPTR=9160