A Legal Analysis of the Transfer of Public Lands Movement

Abstract

Utah’s legal claims to federal land grow out of its statehood enabling act. Since similar statutory language is found throughout the Western states, a successful claim by Utah could fuel more claims and potentially end the public land system as we know it. Utah’s claims, like those of its neighbors, are doomed to failure, however. The federal government has absolute control over federal public lands, including the constitutional authority to retain lands in federal ownership. Statutes authorizing Western states to join the Union required those same states to disclaim the right to additional lands and that disclaimer cannot be spun into a federal duty to dispose. Statehood enabling acts’ guarantee of equal political rights also cannot be spun into a promise of equal land ownership. Furthermore, though statehood enabling acts guarantee states a share of the proceeds resulting from federal land sales, that guarantee is not an obligation to sell.

As a BLM spokeswoman recently said with respect to confrontations over public land management and Utah’s antagonistic tone towards the federal government: “It is frustrating as we work to identify the best possible path forward for everyone when some of the entities we are trying to work with consistently feel the need to poke us in the eye and then complain we are not working with them.”99 This may be the larger lesson — that the Transfer Movement does more harm than good to the federal-state relationship needed for effective public land management.