Utah Legislature’s Public Land’s Commission Announces key legal findings [UPH Wire]

December 9, 2015
Kirsten Frank Rappleye
Assistant to the Majority Caucus
Utah Senate
Chuck Gates
Majority Communications Director
Utah House of Representative
*Utah has a constitutional basis to challenge federal ownership of public
SALT LAKE CITY — The Commission for the Stewardship of Public Lands today
announced key findings from a comprehensive legal analysis performed by
legal scholars and practicing attorneys from across the country. These
experts conducted a rigorous objective legal analysis to determine if there
are legitimate legal precedents and historical principles for the State of
Utah to challenge the federal government’s permanent ownership of the
majority of the land within the State. The conclusion of the legal analysis
is that compelling legal basis does exist for the State of Utah to
challenge federal ownership of public lands in the state. The findings
identify three primary legal theories as having 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 closely related Equal Footing Doctrine, which requires that States
admitted to the U.S. subsequent to the 13 original colonies should receive
all sovereign rights enjoyed by previously existing states in the U.S.,
including the right to control land within their borders.
3. The Compact Theory, which posits 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.

“All states enter the union under what the Supreme Court calls an ‘equal
footing’ – a right that is older than the Constitution itself,” said
Professor Ronald D. Rotunda, constitutional scholar and member of the legal
team. “The Federal Government treats Utah and the other western states
decidedly unequally. It actively stimulated growth in the 38 States to the
East, while denying Utah sovereignty and forever locking away over 66
percent of the State’s land. This disparate, discriminatory treatment
violates fundamental fairness and is contrary to the Nation’s founding
principles. Our conclusion is that Utah can pursue legal remedies to right
this wrong and put Utah and all western states on an equal footing with
states in the East.”
An economic study

by the legislature in 2013 and completed in November of 2014 (performed by
the University of Utah, Utah State University, and Weber State University)
found fiscal evidence that the State could effectively manage these lands
outside of the National Parks at a lower cost than what the Federal
Government is currently spending.
“The results of this comprehensive legal analysis compliment the previous
findings of this commission, including the economic impact study from last
year,” said Rep. Keven J. Stratton (R), co-chair of the Commission. “The
transfer of lands, not including existing tribal lands, national parks and
pre-1995 national monuments, from federal to state control would enable
Utah to manage these lands more effectively and at a lower cost to
taxpayers. It is our duty to Utah’s citizens and its future generations to
ensure the proper management and conservation of these lands, while
balancing access and economic opportunities with appropriate fiscal
Jim Jardine, partner at Ray, Quinney, and Nebeker based out of Salt Lake
City said, “This issue has been brewing in the West for generations. As a
Utahn, I was doubtful at first of what the analysis might yield, but I was
surprised to find such compelling historical and constitutional arguments
supporting Utah’s case regarding these public lands.”
Senator David Hinkins (R), co-chair of the Commission stated that “This
examination was performed by some of the best and brightest legal minds
from across the nation, which is reflected in the quality of their
analysis. These legal experts have focused solely on what is legally
defensible in determining who should manage Utah’s public lands.”
The Commission today voted in favor of a recommendation that the legal team
draft a complaint to be forwarded to the Attorney General and pursue legal
action against the Federal Government to claim rightful stewardship over
these lands.
Senate President Wayne Niederhauser said, “I am enthusiastic about the
results of this analysis. As an avid skier and mountain biker, I know Utah
does a great job managing our lands, and I am eager to be involved in an
effort that puts these federally controlled lands under the responsible
management of the State of Utah.”
“Utah has been well-served by this critical process of determining who has
the rightful authority to manage our state’s public lands,” said Speaker
Greg Hughes. “I have been continually impressed by the dedication
demonstrated by my colleagues on both sides of the aisle, as well as by the
legal experts this Commission has retained to research the State’s legal
Currently, the Federal Government controls 66.5 percent of Utah’s land
area, more than any other state except Nevada (81 percent). As a basis for
comparison, only 0.26 percent of New York is under federal control.
– The Commission is a bipartisan legislative body comprised of eight State
Senators and Representatives who are tasked with evaluating the proper role
of the state in the management of public lands. Members of the Commission
include Co-chairs Senator David Hinkins and Representative Kevin Stratton,
Senator Jim Dabakis, Senator Scott Jenkins, Representative Joel Briscoe,
Representative Melvin Brown, Representative Ken Ivory, and Representative
Michael Noel.
– More information on the Commission for the Stewardship of Public Lands
including meeting materials and archived audio can be found at:
– The legal analysis presented by the Legal Consulting Services Team can be
found at:
– Biographical information for the Legal Consulting Services Team can be
found at the following download link:
– A video of the live streamed post-meeting media availability can be found

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