The Public Lands Debate in UtahKey Issues Involving the Transfer of Public Lands Act

Aisatou Diallo, Jaime Sigarán, and Federico Venco | Vermont Law School

Table of Contents I. Intro to Public Lands in Utah

Legal & Political HummusEnabling Act of 1894 | Transfer of Public Lands Act of 2012

Current Legal Framework Hawaii v. Hawaii Office of Hawaiian Affairs

II. Public Lands Management The Law of Fire

Wildlands User Interface (WUI) State vs. Federal Inconsistencies The Value of Public Lands

Opportunity: Uintah Basin Project III. Politics in the Wild Wild West

Social Welfare and Economics A Look into School Institutional Trust Lands (SITL)Deadline: December 31st, 2014

Conclusion and Future Study

Legal History

1780 – The Resolution of Congress on Public

Lands

1828 – Graduate Price of Public Lands • American Ins. Co. v.

Bales of Cotton1896 – Utah’s Enabling

Act 1960 – Wilderness Act

1976 – Federal Public Lands Management Act • National Forest

Management Act

2009 – Hawaii v. Office of

Hawaiian Affairs

Legal and Political Hummus Federal government maintained two primary goals:

1. Aimed to create new states; and2. Directed to pay debts - EX. The Revolutionary War

The binding value in the Resolution on Public Lands prevented state legislatures from interring with Congress’ primary disposal of public lands

Contrast: The Northwest Ordinance and American Ins. Co. v. 356 Bales of Cotton

Equal footing doctrine upheld in Pollard v. Haggan that:“the United States shall have fully executed these trusts, the municipal sovereignty of the new states will be complete, throughout their respective borders, and they, and the original states, will be upon an equal footing, in all respects." Later expanded upon in State of Texas v. White

Utah’s Enabling Act & TPLAUtah’s Enabling Act 28 Stat. 107 § 3 (1894). [The People of Utah] agree that they forever disclaim all right and title to the unappropriated public lands lying

within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States…”

The Enabling Act of 1896 stipulates Utah disclaimed title to its public lands in favor of the United States until the United States disposed of the lands

Transfer of Public Lands Act. Utah Code Annotated § 63L-6-101-63L-6-104.On or before December 31, 2014, the United States shall: (a) extinguish title to public lands; and (b) transfer title to public lands to the state. (2) If the state transfers title to any public lands with respect to which the state receives

title under Subsection (1)(b), the state shall: (a) retain 5% of the net proceeds the state receives from the transfer of title; and (b) pay 95% of the net proceeds the state receives from the transfer of title to the United States. (3) In accordance with Utah Constitution Article X, Section 5, the amounts the state retains in accordance with Subsection (2)(a) shall be deposited into the permanent State School Fund.

Current Legal Framework Hawaii v. Hawaii Office of Hawaiian Affairs 2009 decision made by SCOTUS held Congress had no right to change the promises

made to the State’s Enabling Act. “together with the proceeds from the sale or other disposition of [these] lands and the income

therefrom, shall be held by [the] State as a public trust” to promote various public purposes.” – Justice Samuel Alito

The Hawaiian case can be distinguished from Utah's case. Hawaiian Admission Act expressly grants the land owned by the US to the new born State of

Hawaii and therefore the Apology Resolution would be unconstitutional if interpreted in the sense of denying such grant.

The difference here is that Utah's Enabling Act does not explicitly grant any land to the State, it just (and according with one of the possible interpretations) says that Congress will extinguish the title at a later unspecified time

Prior to the Hawaii case there was Idaho v. United States (2001) Taken together American jurisprudence (the courts) emphasize that 'Congress cannot, after

statehood, reserve or convey submerged lands that have already been bestowed upon a State'

The Law of FireFederal and State Wildfire Management In 2011, the United States Forest Service spent approximately $18 million on wildfire

suppression spending in Utah That budget increased nearly threefold in 2012 reaching $58 million

The Department of Natural Resources of Utah in 2011 budgeted $3 million for the upcoming fiscal year

The following fiscal year of 2012 total costs of suppressing wild fires cost upwards $16 millionTying Resource Protection to Community Resiliency

a) Clean Water Act permits states to assert their authority over water in effort to “prevent, reduce, and eliminate pollution in concert with [federal] programs for managing water resources

b) Similarly, the Clean Air Act prescribes Utah to protect watershed projects from smoke and wildfiresThe main problem here is that state and federal approaches to developing the Wildlands User Interface (WUI) are inadequate or lack a coherent form. According to a study conducted by Headwater Economics, development away from the WUI

must be incentivized

Wildlands User Interface

Despite that only 7 percent of the WUI is already developed in the state, wildfires are increasingly becoming more pronounced and unpredictable through climate change

Value of Public Lands

Social

•Recreation•Aesthetic •Wellness Politi

cal

•Conservative Environmentalist v. Radical Environmentalist•Bureaucratic Process•Interagency Coordination•USFS, BLM, and DNREcon

omic

•Resource Commercialization•Human Development•Energy

Uintah Basin Project Applying TPLA According to edcUTAH there are 550 million barrels of oil viable for natural gas and oil extraction

Sutherland Institute Center for Self-Government, Dr. Timothy Considine estimated “the state economy could add…$1.2 billion and $6.7 billion and 9,400 to 58,000 jobs annually by developing oil, gas, and renewable energy on federal lands within the state

Challenges include: a) Need for transportation infrastructure b) Resolve land ownership issues

Where do we go from here?The silver lining is that understanding the full context and implication of TPLA in relation to fossil fuels and renewable energy development on public lands is still unclear TPLA in theory could require an admixture of energy needs including oil and gas development

However, Haggerty, Gude, Delory, & Rasker (2011) note socioeconomic variables associated with oil and gas development lead to negative effects in per capita income, crime rate, and education attainment.

Social Welfare and Economics

School Institutional Trust Lands Administration

Politics in the Wild Wild West A look into SITL Utah’s education is at an extreme low, only spending less than $8,000 on per pupil

funding! More public land would benefit the state to add more school funding because they

would be able to increase tax revenue and provide that to schools Utah Congressman Rob Bishop acknowledges how the state can begin to fund education with

more public land and sets out to educate people on his plan to restore education in UtahAn underlying issue is that the state receives money from the federal government via Payment-in-Lieu-of-Taxes (PILT)

With the lack of private and state land, comes the lack of tax revenueThe Environmental Divide: Some environmentalist feel that the land should be left untouched

Another perspective: Utah should move forward with TPLA because the federal government mismanages public land resources at the expense of local communities and local concerns

Future Study: Mid-term Elections

District 1: Robert Bishop won 64.2% of the vote. Emerged victorious over McAleer “Don’t let Rob Bishop and Republican legislators take it away from our children”District 2: Chris Stewart captured 60.4% of constituents. Secured a victory over State Sen. Luz Robles “I’m very much in the middle. I focus on issues of veterans, immigration and education that are pertinent to all Americans.”District 3: Jason Chaffetz delivered 72.3% of the constituency. Defeated Brian Wondacott “[w]e will definitely be using it all up and even though there are efforts to get more with fracking and stuff like that and all that means is that we will use more oil faster.”District 4: Mia Love garnered 50% of the votes. Pulled a win against Doug Owens “[W]e can be good stewards here in Utah, absolutely. I favor the stake holder driven process, not driven from Washington, driven from here.

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Thank You!

Acknowledgements: Headwater Economics, Sutherland Institute, Desert News, UtahPolicy.com,