SALT LAKE CITY — One expert on the legal right of the state to control land within its own borders says a potential court challenge by state lawmakers to federal land holdings in Utah comes down to a simple concept: control.
“He who controls the sod, controls the people,” Bill Redd said of a potential showdown over the 67 percent of the Beehive State owned by the federal government. Redd, a former San Juan County commissioner, said he has experienced firsthand the negative side of federal land control.
There are four bills now in front of the Utah House of Representatives that form the basis of a legal challenge to the federal government’s right to control approximately two-thirds of the land in the state. The bills invoke promises dating back to when Utah gained statehood in 1896.
One resolution, sponsored by Rep. Roger Barrus, R-Centerville, calls for the federal government to turn over control of the land to the state by Dec. 31, 2014. The measures still await final approval at the legislative level as well as the formal backing of the governor.
Another measure appropriates up to $3 million to the Utah Attorney General’s Office to initiate the lawsuit against the feds, if needed. There has also been talk of getting other states to join a potential challenge.
It will take more than saber-rattling, however, to make it happen, say many sources.
Redd, a resident of Blanding, said he has experienced the issue of federal control at the local level. The co-author of “Statehood: The Territorial Imperative” said you can’t even till the soil in many areas near his home without a permit. Redd said some of his experiences led him to partner with Bill Howell, of Price, in doing detailed research on the land issue before publishing the book.
Redd’s book details legal cases involved in the states rights issue and outlines a constitutional pattern of saying the federal government should cede its land to the state. Redd thinks the state has a chance in court if it goes about it the right way.
He said the issue of taking on the feds is all about acting like a state with sovereign rights. He said all states east of Colorado essentially control the land within their borders because there is so little federal-owned land in those states.
There is more at stake than who controls the land. The debate in Utah has a historical, educational component to it.
To gain statehood, the Utah Enabling Act contained language stipulating that, as federal lands were transferred to the state, where they could then generate tax revenue, 5 percent of the funds would go to a trust fund for education. Most of the land has never left federal hands, and subsequently, the revenue stream has never developed. A number of officials claim that is why Utah ranks near the bottom of per-pupil funding.
U.S. Sen. Mike Lee, R-Utah, says the land debate raises big constitutional issues. He cites notes from the Constitutional Convention of 1787, in which Elbridge Gerry, a delegate from Massachusetts who would become the fifth vice president of the U.S., worried that federal control of land within a state would allow the federal government to force states to give “humble obedience” to the government.
“That concern 225 years ago still remains today. If you give too much land to the federal government, and let them hold it, and let them declare it (tax) exempt, you have a problem,” Lee said. He said Utah students and teachers deserve the revenue the land should be generating. Lee said Utahns also deserve the right to be on equal footing with other states that have few federal land holdings within their borders.
U.S. Rep. Rob Bishop, R-Utah, estimated in 2011 the revenue the state could generate by being able to impose a small tax on federal land holdings. He suggested that placing a fair tax on those properties, if they are not returned to the private sector, could provide a financial boon to education. He said even sagebrush property taxed at its lowest rate could potentially generate $116 million a year for the state.
Not everyone buys the notion that the case for transferring the land to the state is so obvious.
Scott Groene, executive director of the Southern Utah Wilderness Alliance, described the idea of challenging the federal government over land claims as a platform based on stupidity. He said the case is legally flawed and that Utah gave up its right to control of the land with the enabling act.
“It’s so clearly wrong legally and it’s wrong from a policy standpoint,” Groene, an attorney, said of the approach. He suggested the legislation is being pushed by people more interested in re-election than in protecting the state’s resources. He said the state would be wasting money to take the matter to court.
“These lands belong to all Americans,” Groene said. He said maintaining federal ownership allows easy access to recreation activities, which might not be available otherwise.
Some lawmakers, including Rep. Mike Noel, R-Kanab, have issued warnings about what might happen if Utah takes on the federal government. He wonders if legislators have considered the risks.
Redd has suggested one potential risk is the closure of Hill Air Force Base. He wonders if a state challenge could impact the future of Hill during the government’s next proposed Base Realignment and Closure.
“How much do you love Hill Air Force Base?” Redd asked.
Lee thinks that argument is reckless, but suggests the fact the possibility even exists is a problem. Bishop also believes it is a scare tactic without a basis.
Besides funding for education, the land issue holds other major implications for the state economy. Utah’s rich abundance of natural resources could generate revenue enough to eliminate the state income tax, said Rep. Ken Ivory, R-West Jordan, who has sponsored one House bill on the issue.
Hard data on the potential value of the state’s natural resources is difficult to pin down, but a preliminary analysis done by the Office of Energy and Resource Planning showed the estimated value of coal in the area of the Escalante Monument alone to be valued between $221 billion and $312 billion. Barrus claims more than $1 trillion in coal reserves are in the Beehive State, and the state’s resources include a “world class” amount of oil shale, plus natural gas and minerals.
Gov. Gary Herbert will not comment on specific bills until they clear the legislative process, said spokeswoman Ally Isom, but she said the governor is eager to see meaningful movement on the issue. Herbert has been committed to seeing the state gain control of federal lands for over 20 years, she said.
The issue has a very good chance of clearing the House and Senate, Barrus said. House Bill 148, sponsored by Ivory, has more than 40 co-signers in the House, and Barrus said he thinks there is significant support for the issue in the Senate.
Bishop said he likes the approach the Legislature seems to be taking this year. He said he has shown his Eastern-state colleagues maps and charts of the differences in land, but he suggests those are not what will sell the concept.
“Saying it’s unfair and wrong, it’s not selling. We have to show how it impacts our infrastructure and if we change what it means. That actually sells. If they (his Eastern colleagues) realize how much money they are paying to lock this land…” Bishop said.
He said the land-use paradigms at the federal level change about every 40 or 50 years. He said it has been almost 50 years since the last change, and he thinks the Legislature’s efforts could be very timely.
“It is time, it is ripe for that discussion,” Bishop said.
Barrus said he and other lawmakers are prepared for a drawn-out dispute with the federal government. He expects neighboring states, including Idaho, Montana, Arizona and Nevada, to join the fray as well. He said the federal government has just not kept its promises. He likened the problem to the issue facing early colonists in America who had a feudal landlord in Great Britain.
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