The fight over a potential takeover of public lands in Utah erupted once again this week, as Representative Ken Ivory (Republican, West Jordan) and Southern Utah Wilderness Alliance (SUWA) staff attorney, David Garbett, squared off on a national teleforum hosted by the conservative Federalist Society.

For years, Representative Ivory has been advocating for his Transfer of Public Lands Act, legislation that attempts to force the United States to cede control of public lands in Utah to the state legislature. According to Ivory, who now makes a living on the subject as the head of the American Lands Council, when Utah and other Western states were admitted to the Union there was an implicit understanding and agreement that the federal government would immediately sell off all public lands within the state, or transfer control of the lands to state governments.

“We must compel Congress to honor their agreement and transfer the land back to Utah,” Ivory told the listening audience. He also put emphasis on his argument that giving Utah control of the lands is the only way to get Utah out of its last-in-the-nation ranking for public school funding, a claim he and Utah Congressman Rob Bishop (Republican) have been making for years. “We know that Utah is $2.5 billion below average on per-pupil funding in our schools, but there’s no way we can tax our way out of it,” said Ivory.

[pullquote] “The Transfer of Public Lands Act violates the U.S. Constitution, the Utah Constitution, and Utah’s Enabling Act. Simply, it’s bad public policy.” – David Garbett[/pullquote]But there are major legal concerns to Ivory’s crusade, says SUWA’s attorney, Garbett. “The Transfer of Public Lands Act violates the U.S. Constitution, the Utah Constitution, and Utah’s Enabling Act. Simply, it’s bad public policy.”

Utah’s Enabling Act, which brought the Beehive state in to the United States and was also adopted into the Utah Constitution, reads as follows:

“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 to all lands lying within said limits owned or held by any Indian or Indian tribes; 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.”

According to Garbett, the phrase “forever disclaim all right and title to..public lands” couldn’t be more clear, and completely eliminates any claim to U.S.-owned lands within the state. However, Ivory and his supporters focus on the next line, saying that “until the title thereto shall have been extinguished by the United States” constitutes a contractual agreement between the United States and Utah that the country will indeed sell off the land it owns within the state.

Garbett says there is no evidence that there was ever an understanding that public lands would immediately be sold by the United States. “Before Utah became a state, all of this land was federal land obtained during the Mexican-American War,” said Garbett. “If Representative Ivory is correct and Utah was expecting that these lands would be quickly sold or disposed of, he has some explaining to do because in 1897, one year after Utah became a state, the federal government created Utah’s first forest reserve. This was an explicit statement by the federal government that it was not intending to dispose of public lands, that it was intending to retain and manage those lands. Before Utah was even 20 years old, it had all of its national forest units, covering millions of acres in the state, as well as a national monument (Dinosaur National Monument) and the precursor national monument to Zions National Park.”

Garbett also pointed to a 1902 LDS Church priesthood session, during which a vote was held on whether the federal government should or should not sell off the land. The vote went in favor of the United States retaining the land.“I’m not saying that the LDS Church sets policy for the state of Utah, but if an interest group that constitutes a super-majority was urging the federal government to take action to retain management of federal lands within Utah’s borders, then I think it’s hard for us to say that there was an expectation that land would be turned over from the get-go. History shows that is not the case.”

Ivory shot back, pointing to a resolution passed two decades later by the Utah Legislature, demanding that the United States turn over the land to them. “That clearly shows,” said Ivory, “that there was an agreement.”

Garbett says that even if Representative Ivory is correct, and there was an unwritten agreement that the land would be sold, it still doesn’t matter. “The fact is they have not been sold, and so the state of Utah, in its constitution, still has a commitment that it will lay no claim or title to those lands. There are no specific promises made in the contract. Congress, as the enabling act clearly explains, has the authority to control and administer public lands until they decide that they no longer want to do that. ”

But Ivory disputes that Congress is even authorized to administer public lands at all. He says that Article 4 Section 3 of the U.S. Constitution, which reads “Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States..” means that Congress’ authority is strictly limited to the disposal of the land.

If successful, would this be the first takeover of federal land by the state? Representative Ivory says no, that many other states—including Florida and Missouri—have successfully pushed for public lands to go to state or private owners. But Garbett disagreed with the framing of Ivory’s claim, saying that in those cases it was congressional legislation like the Homestead Act, which allowed early settlers to keep the land they were already living on. “The People of Utah were given that opportunity too, and many took advantage of it,” said Garbett. “But the reason why more of Utah wasn’t claimed was because so much of the state is arid, and is difficult to farm or ranch on.”

Both men agreed that a Utah takeover of United States land would have a big impact on the people of the state, although they disagree on what that impact would be.

[pullquote]“Getting access to these lands is the only major way to grow our economy and secure funding for our schools.” -Rep. Ken Ivory[/pullquote]“Getting access to these lands is the only major way to grow our economy and secure funding for our schools,” said Representative Ivory. He argued that the Utah Legislature could do a much better job managing the land, which would bring in more tax revenue for the state. He also says that the state legislature would remain committed to “multiple-use” of the land, meaning access to the land for recreation, sportsmen, and oil/gas/coal mining.

Garbett disagreed, and said the lack of funding for public schools had nothing to do with the amount of public land in Utah. He pointed to other states which have a lower percentage of private land per capita than Utah, such as Alaska, which have no problem funding their schools. “I think [the lowest-in-the-nation education funding] is for different reasons.”

According to Garbett, even if a takeover of U.S. lands were successful, the only way it would make up the gap on education funding would be to sell the land to oil and gas developers and private buyers, and that would restrict Utahns and tourists from being able to use the lands for recreational and sporting purposed. “Privatized land is not public land. That land is public right now and you can go hunt on it. What makes you think you’ll be able to continue hunting there if the land is sold to a private individual and that became private property? You wouldn’t!”

[pullquote] “Privatized land is not public land. That land is public right now and you can go hunt on it. What makes you think you’ll be able to continue hunting there if the land is sold to a private individual and that became private property? You wouldn’t!” -David Garbett[/pullquote]The comment did not sit well with Ivory, who angrily replied “Under [the Transfer of Public Lands Act] federal public lands become state public lands. The only ones talking about selling off and privatizing public lands are organizations like Mr. Garbett’s—it’s fear tactics! We want to preserve and maintain access.”

Garbett fired right back, “I’m glad to hear Representative Ivory say that the state of Utah will not sell any public lands if it were to acquire them from the federal government, because it doesn’t say that in the legislation, and the state of Utah have never made that commitment. I look forward to that bill being introduced in the legislature. I don’t think it will be, but I’m glad we have that commitment.”

“Of course not, David,” Ivory replied.