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the Utah State Capitol for our
episode today. It was here a couple
Welcome to this week's episode of
The County Seat once again we are at
years ago that a new trend started
and it started as an extremely
controversial bill called House Bill 148
it actually asks the federal
government to give back the lands
that were promised in the Enabling
Document of the Constitution. It'
been discussed for 8 or 9 years prior
to that but this was a question that
legally should be vetted out and has
gone from being a controversial bill
to being a movement across the west
and has actually gotten some feet
under it so we thought it would be
wise at this point almost on the two
year anniversary of the bill's passage
to come back and revisit the transfer
of public lands and how it is doing
joining us today for our conversation
Rep Ken Ivory the author of the
original bill from District 47 and
Commissioner Allan Gardner from
Washington County. Gentlemen,
thank you for joining us today.
We are happy to be here.
Okay since the Governor signed this
into law we have made quite a few
hallmarks one might come to mind is
that the following year there was
some mechanisms as to following
how we would handle the transfer of
lands when the whole thing came to
fruition there was some funding set
aside to challenge it in court if need
be. What else is going on, give us an
update. Ken we will let you start.
It's hard to believe it's been only 2
years. We have five states that have
now passed similar legislation to start
looking at the logistics of having the
federal government to honoring the
same promise to our state. We have
a full legal analysis done by the
federalist society, 40,000
constitutionalists focused lawyers,
scholars professors and what we are
doing in legally constitutionally
historically based. Several legal
analysis have now been done, in the
Eastern states they are doing
resolutions supporting the transfer of
public lands to the western states.
Republican National Committee did a
unanimous resolution a couple of
weeks ago supporting the transfer of
public lands.
Now that's new news is it not.
Yes, it's pretty big news Because
what the we are finding is that the
Eastern states realized they are
spending tens of billions of dollars to
subsidize western states to not use
our own lands and resources to care
for our own kids and communities.
There are 150 trillion dollars in
mineral value locked up and that
economic benefit helps the entire
United States so seeing that and the
mess we are in nationally eastern
states are no gravitating as well.
It's kind of a surprise to me that a
week after the Republican National
Committee gives us a lot of credibility
that former Senator Bennett
dismisses it as being crazy talk in an
editorial in the Deseret News.
Just shows you how much education
needs to happen. For someone who
was in the US senate to not
understand that we didn't give up our
land. He made the statement that a
governor of Utah was offered the
land and gave it up. In 1932 was they
were offered was the surface and
only the surface of the land and the
federal government would keep all
the minerals. Utah along with all the
other western states banned
together and rejected that false
promise and said no you have to keep
the whole promise just like you did
with all states east of Colorado. So
we have education to do and we see
that as an opportunity to educate.
So Allen, I have to ask you a question,
if this is really a grass roots
movement and not just a couple of
resolutions that have been lobbied
through what evidence are you
seeing as a County Commissioner?
Well we are seeing interest from
counties all over the whole country. I
carried the resolution to the national
association of counties two years ago
and it was re-upped this last year that
called for the transfer of the public
lands and one thing that I found
really interesting this year is that I sit
on the public lands committee for the
national association and each year
we make a big list of things that we
see that need to happen and changes
that need to be made and then we
prioritize those. The first one was
PILT and SRS which were the first two
which were very important
economically to the counties. Our
bribe for having the federal lands and
tied for number three was the
transfer of public lands and that's
come a long ways but the thing I
pointed out to the Commissioners if
the public land transferred and the
states had control of them the
majority of that whole big list of
issues we had would go away and we
would have a lot better control of
them and so I think people are
beginning to realize that that is really
where the lands need to be as here
controlled by the states.
Thank you very much we have now
established that from some of these
updates it's becoming a movement
that is broader than the state but
there is also a growing movement of
people that think that that this is
really not a real issue and we do not
have a constitutionally footing. We
will talk with some of these people
when we come back on the County
Seat. This should be a good
Welcome back to the County Seat our
topic today has been on the public
lands transfer act commonly known
as house bill 148 the fact that the
clock is ticking and while the
enthusiasm and the emission of the
bill has spread to the states as we
have learned in our last segment
beyond the boundaries of Utah there
is also speculation that is growing as
well as to whether it's actually a
feasible project. Joining us for that
part of the discussion from the
Hinckley Institute of Politics from the
University of Utah Tim Chambliss and
from the Univeristy of Utah Law
School Quinney law school we have
Bob Header. Thank you gentlemen
for joining us, Professors I feel like I
am in very distinguished company
right now so let me start with the
question of your take on what's going
to happen on January 1st 2015 that is
different than December 31st,
because that is the deadline that we
are supposed to have something
happen.
Well most likely nothing will happen
that will be evident. It's unlikely that
congress is going to pass any
legislation acknowledging the
transfer of public lands act that Utah
has enacted and hence the ball will
come back into the state's court and
it will have to decide whether or not
to file a lawsuit pressing this case.
There have been some arguments
that have been presented that have
been fairly convincing arguments that
there is a constitutional legal footing
for this to happen and that there are
precedents that are compiled
together that would make that a
viable argument. What would you
say to that?
The case really turns upon two issues.
One is whether or not federal
government, congress is obligated
under the Utah enabling legislation
that created Utah as a state to
extinguish or dispose of the federal
lands that it has retained since
statehood. The second question if
there is indeed an obligation then
does congress have the authority as it
has through ordinary legislation by
the federal land policy land
management act partially to ignore or
overturn that obligation. That
authority of congress terms upon its
authority under the property laws of
US constitution and the Supreme
Court has said that power is basically
without limitation so it is an
extraordinarily powerful authority to
oversee and expose of if it chooses or
otherwise retain and manage the
federal lands. Jumping back for a
quick second for state enabling
legislation there is conflicting
language in that legislation. Much of
it focuses upon the states language
that says the state will relinquish all
claim and title to the federal lands
whether or not given that language
there is corresponding duty or an
overriding duty on the part of the
federal government to dispose of
those lands actually turns upon
history of some federal lands and
policy at that point in time and how it
has changed since then.
Tim, let's look at the political
environment. There is a
constitutional issue as we discussed
before we started this segment here
that there are people in the camp
that say wouldn't that be good and it
would be a good argument but they
don't think it will ever happen. How
does the political environment play
into this?
I think problem solution. We have a
problem. Utah State government has
budgeting 13.3 billion dollars a year.
If we look at how that budget is
broken down we see that more than
half of the budget is dedicated to
public education you can add to that
higher education if we look just at
public education with a population of
less than 3 million people for the
state of Utah about 97% of our school
kids kindergarten through 12 attend
public schools. Tax payer supported
and we see that in order to bring
Utah's level of education up to the
quality that it should be it is
estimated that we need at least 2
billion dollars more to have good
schools, well paid teachers excellent
facilities and lower teacher student
ratio so where are we going to get
that money. Rep Ivory said let's sue
the federal government, let's have
access to these lands. Well litigation
takes time it's expensive and
probably cost us a lot more than 3
million dollars and chances are
historically if you predict the
immediate future off the recent past
after a good deal of time the state
will lose.
At one point some of the other states
had very similar enabling language.
They actually got congress I believe,
Missouri and Illinois Kentucky that
whole area there they lobbied and
basically one senator said hey this is
not right we are supposed to be
disposing of federal lands and they
got it done. Could that argument not
be applied to us?
We are looking at 2014 and 2015 and
we can all see the cooperation in the
national legislature. The congress
said we see that in the past year in
2013 Congress passed 53 significant
bills. Harry Truman back in 1947
called that 80th congress do nothing
congress that congress passed more
than 400 bills. So we see congress in
deadlock right now we don't see
significant legislation being passed
and what we are talking about here is
historically significantly legislation.
So I guess that goes back just prior to
the Tailor Grazing Act if I'm not
mistaken there was some talk about
the federal lands out here were arid
and the federal government I guess
at one point supposedly offered and
they didn't want to take them.
There was a public land commission
under during the administration of
Herbert Hoover who came up with
proposals in fact to return federal
lands to the western states to the
states and in fact the states indicated
that they were not interested in that
that was driven for a number of
reasons. Probably principally the
lands were in very poor condition for
that time hence the Tayler Grazing
Act a year later and also the lands
really were not all that valuable and
that really goes back to your other
question about the Missouri and
some of the states further east and
the fact that they no longer have
significant federal lands. Most of
those lands actually moved from
federal lands into private hands
through laws like the homesteading
acts and similar types of legislation.
During the middle part of the 19th
century and they moved because the
lands had some value. They could be
used and developed for agricultural
purposes.
Prior to Tayler Grazing wasn't part of
the argument centered on the fact
that they were talking about surface
rights being transferred and not
surface right, but mineral rights?
Beginning shortly after the turn of
the 20th century the federal
government began splitting states
transferring surface rights, retaining
mineral rights and subsequently
transferring those at a later time for
retaining them which means that the
actual land ownership patterns today
are quite complex on the public lands
and even on some of the lands that
are privately owned. Where you
have federal mineral rights and
sorting all of that out through a
transfer of public lands act like Utah
has adopted would be a very complex
matter and in fact it has been an
argument against the transfer in
some of the state legislatures that
have considered that.
Well as you can see it's very complex
and there are a lot of issues that still
remain on the table we will return
with our conversation and look at
some of the mechanical procedures
that are set to go forward from this
point to the end of the year. We will
be right back with the County Seat in
just a minute.
Welcome back to the County Seat
today we are talking about the public
land transfer that started as a bill
house bill 148 in case you are just
joining us has now been in effect in
Utah for a couple of years and has
started to spread rather rapidly
across the west as we learned in our
first segment across the nation, but
there are people that we found in our
last segment that don't believe we
have a legitimate legal standing. So
when we were talking to Professor
Keitel from the Quinsy Law School in
Well now you have obviously
debated this issue with Professor
Keitel before and he has talked about
the fact that all western states, all
these arid states have the same
language in their enabling documents
and you have pointed out there are
eastern states that have the same
basic language what would be the
difference?
Good question. Promises are the
same so what really set this off Chad
was in 2009 there was a unanimous
Supreme court opinion that says
congress does not have the authority
to simply change that uniquely
sovereign character of our enabling
act our statehood partially where all
of our public lands are at stake.
There are other Supreme Court cases
Utah vs. Andres where the Supreme
Court has called these enabling acts
solemn contracts. Something way
more than just a contract. It's a
contract between sovereign that they
said it has rights and obligation that
are enforceable on both sides and
that's all we are looking at is just
keep the same promise and we much
rather have a negotiated early
transfer keep the national parks off
the table, monuments wilderness
protect those for everyone and
continue to maintain those in that
standpoint but honor your promise
just like you kept with Louisiana and
Alabama and Nebraska and North
and South Dakota. They have the
exact same language in their stated
documents.
So Allen do thing that the problem
that people are having to grasping
this to continue to right or talk about
the plausibility that it's just a
perceptual thing as opposed to being
a illegally founded thing. How could
the government change it's always
been this way.
I think that is the issue a lot of people
have especially we have a whole
generation or two that has grown up
with this being public lands and we
have never been taught or realized
that it should have been given back
to the states and I think it's all a
perception that people just let slip by.
Which was the last state that joined
the Union and you may not know this
question that actually got most all of
their undesignated lands returned to
the state or disposed of by the
federal government?
You have to go all the way back to
1959. Hawaii got theirs when they
came in right off the bat they gave
them all their lands.
It said right in their enabling act that
the United States hereby grants
directly to the State of Hawaii title to
all the public lands title to all which is
held by the United States
immediately prior to their admission,
because their native Hawaiians didn't
want the federal government
thousands of miles away ruling over
their lands so they mobilized they
activated they exercised their
political franchise and power and
compelled congress to transfer their
lands. That's the exact same thing
that Illinois and Missouri and
Arkansas and Louisiana and those
states did when they were 90%
federally controlled for decades they
activated their power from the
people up and compelled all their
representatives in congress and
talked throughout the United States
and compelled congress to transfer
their lands and they are now less
than 5% federally controlled.
Is this movement sitting around the
20th century when this civil war was
the trigger apparently the transfer act
after the civil war?
A lot of transfer happened after the
civil war. In fact in early 1930's the
states had pushed again and drove
congressional hearings and hearings
were granting the remaining of public
lands to the states, not if just how.
That's where the federal government
said hey we will give you the surface
and keep our promise and give you
the surface and we are just going to
keep all the minerals that's all the
really valuable stuff and then the
states said no we are not going to
accept the half of promise you have
to keep all your promise and that
lead to the trailer grazing act which is
a stop gap. The trailer grazing act
Chad the first line of the trailer
grazing act in 1934 said this is just to
promote the highest use of the public
lands pending its final disposal.
And then that changed in 1976. So
how does one move forward with
this? Obviously you are stating facts,
I have no reason to suspect you are
telling me a fib but no one seems to
want to believe it.
We encourage people to go to the
Americanlandscouncil.org website.
All kinds of information there. Legal,
white papers, articles studies that
shows the states economically can
more effectively manage public lands
than the federal government. It's not
even close. Environmentally we have
issues there is a great video of the
Montana Governor pretty liberal
democrat saying look in the states we
have 5% of the forest of land we yield
15% of the harvest, we still protect
the species but on the federal side
burning down the forest, the
endangering species killing habitats,
destroying watershed.
Environmentally, economically we
cannot afford not to.
Let's talk about the environmental
We are taking a break. When we
come back we are asking a question
that this year I am running education
regards to a follow up to that. Good
bills this year, I am helping and
conversation on the public lands stay
with us here on The County Seat.
Welcome back to the County Seat our
topic today has been the transfer of
public lands and the fact that the
movement has spread. There are
certain arguments that persist on this
and one of them is well we are going
to privatize all the land and the state
legislature cannot be trusted to
protect public lands and they will all
be sold off and of course with the
selling off the prison that is kind of
reignited that conversation, what say
you?
Well, that is a big concern for a lot of
people. I have heard a lot of
comments on that as well. That is
not the goal. The goal is to get it
transferred to the state and remain in
state management. There may be a
few isolated parcels that get sold off
to the individuals particularly around
communities or something like that
as they grow and need some room to
expand, but the goal is to have these
lands in state control where we can
manage them by the state and still
have the grazing the mining the
recreation the things that we are
using them for now will continue to
use them for in the future.
What is the state legislature to that
end to prove that does not happen?
The short answer on that federal
public lands become state public
lands for multiple use sustainability
and local planning and so this year
there is a public lands caucus that has
formed house and senate members,
Kevin Straten representative out of
Utah County is chairing that and
leading the charge. We are going to
have a public lands stewardship
commission bill that is going through
interstate compact where we start
coordinating our efforts with other
states Steve Handy has a bill on what
wilderness characteristics would look
like under state management, the
lands that we preserve and take off
the table and protect and keep as
open space. We have bills dealing
with the national park shutdown
representative Noel has bills dealing
with the stating the issue going
forward and encouraging our
members of congress on the action
we need them to take for the state of
Utah. It really is encouraging Chad
supporting and working but we have
a public lands caucus where we have
many shoulders carrying the load
now and that is happening all around
the western United States.
That's great. Education is a big part
of this. I would like to encourage you
that you will hear people from both
sides of this issue these gentlemen
have made some very good claims
and I am challenging you as the
citizens of this state the viewers of
this program to find out for yourself
you can go to Ken's website,
Americanlandscouncil.org you can
find out information through the
Hinckley Institute of Politics you can
look at different points of view and
perspective but get informed you are
the people will drive our future. As
we always say local government is
where your life happens be part of
the solution. Thank you for watching
the county seat you can watch it
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thecountyseat.tv we will see you next