A Big Step Forward For More Effective Local Care of Public Lands

Cars enter Zion's National Park on September 15, 2015 in Springdale, Utah. Four hikers died and three are missing after a flash flood yesterday that also killed several woman and children in two vans that were swept away by the flood waters. (Photo by
George Frey/Getty Images

The nation just took a big step toward better outcomes — both environmentally and economically — for the more than 50 percent of all land west of the Rockies still under the thumb of distant federal bureaucrats.

Utah’s Commission for the Stewardship of Public Lands voted on December 9 to move forward with preparations for legal action against the federal government over much of the 66.5 percent of Utah’s lands that are still federally-controlled. The vote was based on a comprehensive legal report by a high-caliber team of renowned constitutional scholars and litigators from across the nation.

Following an exhaustive legal and historical analysis of the issue, Utah’s report concludes that “legitimate legal theories exist [for Utah] to pursue litigation in an effort to gain ownership or control of the public lands.”

Preeminent constitutional scholar Ronald Rotunda likened Utah and other western states to “orphans” and “second class citizens,” deprived of essential sovereign powers of statehood by unsanctioned federal dominion over their lands. This should concern the entire nation, he said, because strong, self-governing states “are critical to the internal checks of the Constitution.”

At a time when the federal government seems to be wildly out of control, these legal findings should encourage everyone who values the unique “internal checks” our system of federalism established “to protect the liberty of the individual,” as Professor Rotunda emphasized.

The report’s overall conclusion is that compelling legal bases exist for Utah’s government to challenge federal ownership of public lands in the state. Three primary legal theories were found to have merit:

  1. The Equal Sovereignty Principle, which mandates that the States in the U.S. federal system be equal in sovereignty with one another.
  2. The Equal Footing Doctrine, which requires that States admitted to the U.S. subsequent to the original 13 Colonies should receive all sovereign rights enjoyed by previously existing states, including the right to control land within their borders.
  3. The Compact Theory, which means that Utah’s acceptance of admission into the U.S. entailed explicit and implicit promises that the federal government would “timely dispose” of public lands in Utah’s borders, as it had done with the states admitted prior to Utah.

Management of unique western lands by distant federal bureaucrats is not working. One-size-fits-all federal land policies, that are frequently hijacked through endless lawsuits by foreign-funded extremist groups, result in overgrown forests and record-setting catastrophic wildfires that cause air pollution worse than Beijing’s, incinerate wildlife by the millions, and decimate water supplies and natural habitats for decades.

Moreover, a recent report by the Property and Environmental Research Center (PERC) finds that the fiscally-challenged federal government loses 27 cents for every dollar it spends “managing” public lands. States, on the other hand, generate on average $14.51 in revenue for every dollar they spend for the millions of acres of public lands that they already manage effectively.

Unfortunately, federal control of diverse western lands is not just limited to harming the environment and losing money extracted from taxpayers nationwide. Because federal land domination deprives western communities of the ability to generate funds for essential government services, the federal government subsidizes these communities with PILT payments — payments in lieu of the taxes these communities would otherwise generate were it not for federal control. According to U.S. Sen. Mike Lee, “There is no guaranteed amount. Washington just sends what it feels like sending.” This federally imposed dependency creates a serious vulnerability, as Sen. Lee describes it, for Congress to “lord its power over western communities to extort political concessions from them, like some two-bit protection racket.”

For all Americans, this means Washington can manipulate western votes to extract hundreds of billions of taxpayer dollars from access the nation and further metastasize federal power.

For the growing movement to #FreeTheLands to allow more effective local stewardship, this news from Utah is truly historic. With the release of this key report, the State of Utah has taken a critical step towards finally wresting its lands out of federal hands, empowering other Western states to follow suit, and restoring much-needed constitutional and fiscal balance for our nation as a whole.

If Utah’s attorney general Sean Reyes decides to litigate, we believe this case would garner attention and support from freedom-loving Americans nationwide.

The American Lands Council and Federalism In Action are the leading organizations educating about the Free The Lands movement. For general information about how to #FreeTheLands, please have a look at this handbook and policy statement, and share them with other concerned Americans searching for a real solution that is big enough for many of the pressing problems facing our nation.