Saturday, 15 September 2012

Federalism 101.1 - Equal Footing Doctoring

Posted 9/15/2012 by Law Nerd

Remember Rep. Sumsion from American Fork, who not long ago threatened to kick the federal government's toys out of the Utah public lands sand box?  Well I thought I'd check in on our friend, follow up on the bill, and stick a thermometer in the armpit of the nation to gauge the reaction, or lack thereof.  Survey says: Utah's attempt to wrest control over federal public lands within its borders is either being ignored, or has fallen on deaf ears.


When last I wrote about Rep. Sumsion, he had sponsored a bill demanding that the federal government either sell off its public lands in Utah or cede control of them to the Utah government.  This was based on language in the Utah Enabling Act dictating that the federal government would pay to Utah 5% of the proceeds from the sale of public lands within its borders.  Since then, Sumsion's bill, H.B. 91, morphed into First Substitute H.B. 91 (H.B. 91 S. 1).  Now the Utah Legislature has extended its deadline for attempting to sue the public lands pants off the federal government to April 15, 2013, referencing its legislative demand letter, H.C.R. 1.

H.C.R. 1, in turn, demands that the federal government respond in writing or cede control of its public lands in Utah, or else face vindication of the state's "rights under the United States Constitution, Utah's Enabling Act, and natural law."  The rest of the demand letter lays out the thin reed of legal reasoning on which I anticipated the Legislature would rest its future lawsuit.  I quote:
WHEREAS, Utah's Enabling Act guarantees 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, after deducting all the expenses incident to the same, shall be paid to the said State, to be used as a permanent fund, the interest of which only shall be expended for the support of the common schools within said State";
WHEREAS, the national government of the United States has failed to fulfill its obligation under this portion of Utah's Enabling Act, as nearly 70% of the land area in Utah continues to be held by the national government and has not been sold;
The demand letter goes on to school the "national government" on the Equal Footing Doctrine I mentioned in Federalism 101, a doctrine that, I will remind our readers, is not found in the Constitution.  Rather, as the SCOTUS informed us in 1845 when it handed down Pollard's Lessee v. Haganthe policy of admitting new states to the Union on an equal footing with the original 13 colonies stems from the Northwest Ordinance of 1787.

This Ordinance, passed by Congress in July 1787, governed the Northwest Territory, consisting of lands ceded by several of the original colonies.



Any new states admitted to the Union from this Territory were, under the Ordinance, to be admitted "on an equal footing with the original States in all respects whatever."

As I suspected, the Utah Legislature relies strongly on the Equal Footing Doctrine in making its demand to the feds to GTFO Utah's public lands.  The argument goes like this: (1) Utah's Enabling Act admitted the state on an equal footing with the original states; (2) approximately 68% of Utah's land area is federal public land, as compared with Virginia's 16% (the highest percentage of any of the original states); (3) NOT FAIR (unequal footing).

To round out its argument, the Legislature provides the feds with perhaps the most important part of a legal demand letter: a description of the damages one intends to seek to redress such grievous grievances.  How has Utah been hurt by the federal government's alleged failure to sell off its public lands?  Well, see, since the 1970s Congress has had a policy of preserving public lands, rather than selling them.  According to the Utah Legislature, this failure to sell off public lands in Utah, and resulting failure to pay the state according to its contract, has resulted in "loss of revenues" and an "inability to tax the land," thus reducing the amount of money the state of Utah can spend on public education.  In other words: think of the children.


There's just a few problems with the Legislature's theory here.  To begin with, in addition to the issue of statutory interpretation I noted in Federalism 101 (reminding us why the Tenth Amendment is not in fact a magic wand), as the Sierra Club has pointed out in their bill tracker for H.B. 91 S. 1 the same Enabling Act on which the Legislature is pounding its meaty federalist fists contains the following "boilerplate" disclaimer language the U.S. government stuck in there, just in case:
Second.  That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; . . . and 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. . . .
The other problem with the Legislature's theory here relates to the subsequent cases the SCOTUS decided that round out the Equal Footing Doctrine.  A good discussion of these is in U.S. v. Gardner, a Ninth Circuit Court of Appeals decision from 1997 that came out of Utah's sister sagebrush rebel state, Nevada.  Although the SCOTUS held in Pollard's Lessee that shore lands beneath "navigable waters" belonged to the new states just like they belong to the original states, the SCOTUS has grimaced when asked to apply this concept to some of the driest states in the nation subject to seasonal flooding.

See, several of the Western states have made a stab at grabbing federal lands that smells an awful lot like Utah's recent attempt, and when their efforts eventually make it up to the highest court in the land, the result is the same: the SCOTUS refuses to hold that the Equal Footing Doctrine implies equality with the original states in all respects.  As the court in Gardner put it:
The [SCOTUS] has observed that "[s]ome States when they entered the Union had within their boundaries tracts of land belonging to the Federal Government; others were sovereigns of their soil."  While these disparities may cause economic differences between the states, the purpose of the Equal Footing Doctrine is not to eradicate all diversity among states but rather to establish equality among the states with regards to political standing and sovereignty.
So what's happened since the feds got served with these demands?  Absolutely nothing, unless my powers of locating obscure legal minutiae have failed me.  Utah's Legislature only meets for 45 days at the beginning of the year, so the resolution has not advanced far there.  But neither has the federal government given even so much as a fart of a response to the Legislature's plaintive demand letter.  Nothing ventured nothing gained, right?

Sad though it may be (for philistines) to see Utah's public lands remain public and protected, our plucky and rebellious Legislature's demand for the 70% of the state in federal hands to be sold or ceded is likely to fail.  I would prefer this result, personally, though many Utahans would prefer to develop the living crap out of the lands that are currently "locked up."  In case our readers have forgotten what Utah's public lands look like next to Utah's established public lands policy:

I assure our readers that I will follow up when the Legislature is back in session in a few months, to see where this drama goes next.

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