(Historical Background Part 1 excerpts pages 10-23 of the UT TPL Legal Analysis. Click here for the full Legal Analysis and here the the bios of the Legal Team.)

HISTORICAL BACKGROUND - PART ONE 

The Equal Sovereignty Principle and the Equal Footing Doctrine, together with the legal and historical precedent discussed below, conclude that the federal government must treat all States as equal. Indeed, Utah’s enabling act promised that she would be admitted on “an equal footing with the original States.” It was against the historical background of equal treatment that Congress and Utah engaged in the admission process, and documented an understanding that the United States would continue the timely disposal of the public lands within Utah’s borders, just as the United States had always done in previously admitted States with public lands. In fact, however, Congress breached this understanding. As a result of that breach, Utah has been treated as decidedly less than an equal sovereign, a result, as the Supreme Court recently reaffirmed in Shelby, the Constitution does not allow.

INTRODUCTION

(Executive Summary excerpted from the UT TPL Legal Analysis. Click here for the full Legal Analysis and here for the bios of the Legal Team)

Nearly 250 years ago, thirteen English colonies in North America declared their independence from the Crown. In doing so, they created thirteen nation-states; sovereign, free and independent not only of Britain but of each other. As nation-states, they had exclusive jurisdiction over the people and territory within their geographical limits. No law of any other State or nation was enforceable or enforced within their borders. They formed their own legislatures, elected their own legislators, had their own executive departments, maintained their own courts, passed their own laws and exercised dominion over all the land they encompassed. They also succeeded to the ownership of any land that had not previously been appropriated, sold or granted by the Crown while recognizing private title to any that had already been appropriated.

EXECUTIVE SUMMARY

(Executive Summary excerpted from the UT TPL Legal Analysis. Click here for the full Legal Analysis and here the the bios of the Legal Team) 

1.     Summary of Conclusion

Our task is to evaluate alternative legal theories that Utah may use in court to attempt to gain ownership or control of the public lands within its borders. The Legal Consulting Services team has reviewed the historical record regarding public lands, evaluated various legal theories, taken into account strengths and weaknesses of various arguments, analyzed procedural options available to the State of Utah, and considered the cost of pursuing such litigation. Based on that review and evaluation, it is the opinion of the Legal Consulting Services team that legitimate legal theories exist to pursue litigation in an effort to gain ownership or control of the public lands.1 We caution, however, that litigation is time consuming, expensive, and never certain in outcome. We further caution that the federal government will most likely vigorously oppose this effort, raising substantive and procedural hurdles to achieving such an outcome. In the interest of preserving attorney client privilege, this public document does not discuss all anticipated defenses and counterarguments thereto.

(click on the image above for the full Legal Analysis)

"Whether the Property Clause grants the United States the power to permanently own over sixty-six percent of the State of Utah is an open [question] under existing jurisprudence. There is an indication, however, that this Court might be open to the structural Constitutional arguments noted above. In Chief Justice Roberts’ analysis of the structure of government as envisioned by the Framers, we note this admonition:

'The States are separate and independent sovereigns. Sometimes they have to act like it.'

"Perhaps this is an invitation by the Roberts Court to States like Utah, willing to reassert their sovereignty in an effort to restore balance to the federal State relationship." Page 128, Utah TPL Legal Analysis.