Enabling Act Silliness

Protest ride through Recapture Canyon. near Blanding, Utah, May 10, 2014 | Photo by Dallas Hyland, Courtesy of St. George News
Protest ride through Recapture Canyon. near Blanding, Utah, May 10, 2014 | Photo by Dallas Hyland, Courtesy of St. George News

Politics has its silly season.

But litigation provides for perpetual silliness, as litigants (and their lawyers) continuously grasp at straws to justify outcomes.  I’m even tempted to say I’ve seen more ridiculous arguments practicing law than I’ve seen on Facebook . . . but that might be pushing things a bit far.

Regardless, I can say that I’ve been on the grasping side enough times to know when someone has entered the silly zone — and, I hate to break it to you, fellow conservatives: on the idea of a grand public lands lawsuit, we’re there.

So, let’s talk Enabling Acts. Specifically, let’s talk about the Utah Enabling Act.

Before we begin, I want to establish a few propositions that will guide this post:

  1. The meaning of the word “shall” is almost entirely context dependent.
  2. There is a difference between past practice and the extent of an ongoing legal duty.
  3. The idea that you’re going to win the public lands fight in a legal battle to the death is silly.
  4. The fact that the Enabling Act argument is silly does not mean that the idea of conveying federal law to the state or private ownership is silly.

With these things in mind, let’s continue.

The Utah Enabling Act authorized and set conditions on Utah’s admission to the Union.

The Relevant Language

One of the conditions of admission was that the state and its people “forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof.”

It’s hard to envision language more plain.

And yet, supporters of the movement for state control over public lands find an outright repudiation of the disclaimer in an ambiguous subsequent clause, which provides, “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 . . . .”

Seizing on the use of the word shall, the state public lands movement purports to find in this clause a duty on the part of the United States to “extinguish” its title to public lands and convey them to the state (or, presumably, to another private purchaser).

Supporters find further support for their position in Section 9 of the Utah Enabling Act, which provides that “five per centum of the proceeds of the sales of public lands lying within said State, which shall be sold by the United States subsequent to the admission of said State into the Union . . . shall be paid to the said State . . . .”

Again, the reliance is on the word shall, which supporters contend denotes a mandatory obligation, i.e., something the state must do.

Shall We?

But shall is a notoriously tricky word.  Its use is disfavored by legal drafters because, although it is supposed to connote certainty, it is nonetheless fraught with ambiguity.

Similar to the word literally, which, depending on its usage now means either actually, or its antonym, figuratively, the word shall, depending on its usage, may mean the mandatory must, its antonym the permissive may, should, or simply point to some future time.

Bryan Garner meets with Justice Antonin Scalia (photo courtesy Wikipedia)

I’ll let Bryan Garner, the editor of Black’s Law Dictionary and foremost authority of legal drafting, explain:

In law school, we learn that shall is “mandatory” and may is “permissive.” There are even statutes enshrining this idea. If you don’t look closely at shall and its semantic content, those statutory provisions seem to make sense.

But let’s do look more closely. What about laws stating that “No person shall … ?” If shall means “has a duty to” or “is required to,” we have a problem. We’re negating a command to do something: You’re not required to do it (but, by implication, you may if you like).

That’s plainly not the meaning. What is meant is to prohibit altogether—to disallow. Hence it should be “No person may … .” That is, no person is allowed to do this.

Confronted with a “No person shall” provision, courts routinely hold that shall means may. In every English-speaking jurisdiction that I know of—don’t be so shocked—shall has been held to mean may. As Justice Ruth Bader Ginsburg remarked in a majority opinion: “though shall generally means must, legal writers sometimes use, or misuse, shall to mean should, will or even may.”

In the ninth edition of Black’s Law Dictionary, I list five meanings for shall:

shall, vb. (bef. 12c) 1. Has a duty to; more broadly, is required to “the requester shall send notice” “notice shall be sent”. This is the mandatory sense that drafters typically intend and that courts typically uphold. 2. Should (as often interpreted by courts) “all claimants shall request mediation”. 3. May “no person shall enter the building without first signing the roster”. When a negative word such as not or no precedes shall (as in the example in angled bracket), the word shall often means may. What is being negated is permission, not a requirement. 4. Will (as a future tense verb) “the corporation shall then have a period of 30 days to object”. 5. Is entitled to “the secretary shall be reimbursed for all expenses”. Only sense 1 is acceptable under strict standards of drafting.

In short, shall is a chameleon-hued word.

The Arguments

With that established, let’s turn back to the Utah Enabling Act.

The precise phrase that’s used in Section 3 is shall have been, specifically, “until the title thereto shall have been extinguished.”

It strains the language to view the phrase shall have been as indicating a future duty. It makes little sense to read the clause as “until the title thereto [must be] extinguished by the United States.” It makes much more sense to read the clause as, “until such time as the title thereto is extinguished by the Unites States.”

In other words, at such point as the United States extinguishes its title to the unappropriated public lands, the lands will no longer be subject to the disposition of the United States. Conversely, if the United States never extinguishes its title to the unappropriated public lands, they remain subject to the disposition of the United States perpetually.  Indeed, that would be why the state was required to “forever disclaim[] all right or title” to the lands.

Section 9, though more ambiguous, presents a similar situation.  The phase shall be sold, could mean (as supporters of the state public lands movement contend) must be sold, or it could just be referencing a potential future event, i.e., making clear that, as to whatever lands the United States elects to sell, a percentage of the proceeds will be paid to the state.

I’ve heard supporters of the state public lands movement argue that the Enabling Act, as a contract between the United States government and the people of Utah, must be interpreted as a whole in a manner that best gives effect to all its provisions.

I agree with this sentiment, but I struggle to reconcile it with their interpretation.

The use of shall in each case cited by the supporters of the states land movement is ambiguous. Does it mean must, may, or is it simply identifying a potential future event?  But what is not ambiguous is the statement that the state “forever disclaims all right and title” to the unappropriated lands. Given the clarity of the disclaimer, and the ambiguity of the clauses relied on by the supporters of the public lands movement, the interpretation that best gives effect to all the provisions seems clear.  To interpret it the way proposed by supporters of the state lands movement would be to read an ambiguous clause as effectively nullifying an unambiguous clause, which runs contrary to all principles of contract drafting and statutory interpretation.

Furthermore, the phrase shall have been is used exactly in one other place in the Utah Enabling Act, and the context of its other use is quite illuminating.  Section 6 of the Utah Enabling Act provides as follows:

SEC. 6. That upon the admission of said State into the Union, sections numbered two, sixteen, thirty-two, and thirty-six in every township of said proposed State, and where such sections, or any parts thereof, have been sold or otherwise disposed of by or under the authority of any act of Congress, other lands equivalent thereto, in legal subdivisions of not less than one quarter section, and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said State for the support of common schools, such indemnity lands to be selected within said State in such manner as the Legislature may provide, with the approval of the secretary of the interior; provided, that the second, sixteenth, thirty-second, and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants nor to the indemnity provisions of this act, nor shall any lands embraced in Indian, military, or other reservations of any character be subject to the grants or to the indemnity provisions of this act until the reservation shall have been extinguished and such lands be restored to and become a part of the public domain (emphasis added).

Map of Utah Indian Reservations (courtesy UEN)
Map of Utah Indian Reservations (courtesy UEN)

If Section 6 is read in the same way that supporters of the state public lands movement read Section 3, it would require that all Indian and military reservations be extinguished and returned to the public domain.  Now the state can sue the federal government to convey Indian Reservations and military installations to them as well!  This violates another principle of contract and statutory interpretation — interpreting in a manner that leads to absurd results.  Alternatively, a much plainer reading is that, if the reservations ever are extinguished, Sections 2, 16, 32, and 36 of every township would be given to the state for the support of the public school system.

Finally, even assuming the interpretation of the Utah Enabling Act urged by the supporters of the state public lands movement is correct, and the United States has a duty to convey public lands, where does it get you?  There is no time frame imposed on whatever mandatory obligation of conveyance exists, other than it occur some time “subsequent” to the admission of Utah as a state.  So what duty are you suing to enforce, exactly?  The obligation to convey one parcel every ten years?  One parcel a year?  Ten parcels a year?  All parcels immediately?  The fact that the ambiguous duty is not defined in any meaningful way suggests again that the more straightforward construction — without the duty and consistent with the disclaimer — is the one intended.

I suspect (though I have no knowledge of the fact) that, at the time the Utah Enabling Act was adopted by Congress, Utah assumed that the United States would convey the unappropriated public land to private owners.  Or, it may have assumed that the United States would manage the lands in an unobjectionable manner.  And, indeed, that was the habit for more or less three-quarters of a century after the adoption of the Utah Enabling Act.

But the United States government changed its land management policy — which is the prerogative of a landowner– in the 1970s.

Parties to a contract always have private expectations as to what the contract means and the nature of the parties’ duties. But it is the language of the contract itself that controls, not the unwritten expectations and assumptions. And the language of the Enabling Act quite clearly states that Utah disclaims its right and title to unappropriated public land.

It may be true that, for a long time, the United States government provided performance beyond what was required of it by the terms of the Utah Enabling Act.  But you can’t sue the United States government based on prior policy; you can only enforce the contractual obligation.  And, frankly, if you want to talk about breach of contract, you might want to talk about whether the State of Utah is now in breach of the Utah Enabling Act by claiming right and title to unappropriated public lands.

Unproductive Silliness

I cannot envision telling a client, if presented with a contract containing provisions similar to those contained in the Utah Enabling Act, “Oh, don’t worry about that ‘forever disclaims’ language from Clause 3. You’re not forever giving up your property. See, there’s this ambiguous “shall have been” clause a couple sentences later that means the other party has a duty to convey the property back to you (or back to someone else you can take it from using legal process). If they don’t convey the property, just sue for breach of contract. No worries.”

Giving that type of legal advice would keep me up at night waiting for the malpractice claim to drop.

While the argument from the public lands movement  is not frivolous, it approaches frivolity. It is desperate and reaching.  And it is silly in the sense that litigating in reliance on the argument is a waste of money and resources that could be much better spent on more specific cases, lobbying, and building relationships.

By all means, let’s move the public lands debate forward.  The idea that the state should control land within its borders is hardly frivolous and silly.  So, drop the idea of the grand lawsuit, drop the attempts to bully over the language of the Utah Enabling Act, and work for an actual solution.

Remember, Obama won’t be President forever.


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