“Utah has been treated as decidedly less than an equal sovereign, a result, as the Supreme Court recently reaffirmed in Shelby County v. Holder, the Constitution does not allow.” Legal Analysis, page 12
This is the conclusion of the team of preeminent constitutional scholars and legal experts from across the nation, which is supported by the 146-page Legal Analysis they prepared for the Utah Commission on the Stewardship of Public Lands that was delivered earlier this month.
While presenting the legal report to the Commission, distinguished constitutional scholar Ronald Rotunda likened Utah and other western states to “orphans” and “second class citizens” deprived of essential sovereign powers of statehood by unsanctioned federal dominion over their lands. This is critical to the nation, he said, because strong, self-governing states “are critical to the internal checks of the Constitution.”
The overall conclusion of the legal analysis is that compelling legal bases exist for the State of Utah to challenge federal ownership of public lands in the state. The findings identify four primary legal theories as having merit:
- The Equal Sovereignty Principle, which mandates that the States in the U.S. federal system be equal in sovereignty with one another. Section 102(a)(1) of the Federal Land Policy and Management Act of 1976 (“FLPMA”), which reversed almost two hundred years of federal public lands policy from one of disposal to one of near permanent retention, treats Utah as unequal in sovereignty as compared to the States with dominion over the land within their borders.
- The Equal Footing Doctrine, which requires that States admitted to the U.S. subsequent to the original 13 Colonies should receive all sovereign rights enjoyed by previously existing states, including the right to control land within their borders. The original thirteen States stepped into the shoes of the Crown with regard to dominion over public lands within their borders. Similarly, Vermont, Kentucky, Tennessee, Maine, Texas and Hawaii all came into the Union with dominion over their public lands. Dominion over land has historically been viewed as a key incident of sovereignty, and denial of that dominion negatively impacts sovereignty in a variety of ways. Utah should have been admitted as a co-equal sovereign with the States with dominion over public lands within their borders and should have received upon admission dominion over the land within its borders.
- The Compact Theory, which means that Utah's acceptance of admission into the U.S. entailed explicit and implicit promises (often called a “solemn compact”) that the federal government would "timely dispose" of public lands in Utah's borders, as it had done with the States admitted prior to Utah. History establishes that the United States promised to dispose of the public lands, maintained a policy requiring disposal of public lands, and acted upon that policy from 1784 through the date of Utah’s admission. There is historical evidence that Utah and the United States both expected, at the time of Utah’s admission, that the public lands would be disposed of consistent with past practice.
- The Property Clause, Article IV, Sec. 3, cl. 2 of the Constitution delegates to Congress “the power to dispose” of public lands. History, law and the Constitution itself indicate that the Framers intended to grant the power to regulate federal lands only in the context of disposal, not to permanently retain the majority of the land within a State. The historical evidence supporting the Equal Sovereignty Principle, the Equal Footing Doctrine, and the Compact Theory tends to support this interpretation of the Property Clause.
The legal findings open the constitutional door to divest the federal government of lands in Utah still under the thumb of the federal government and empower other western states – collectively still more than 50% federally controlled – to follow suit. Reducing federal control over western lands also diminishes its control over the lives and livelihoods of the people, and is a concrete means of restoring the balance of powers between the states and the federal government.
The constitutional balance between state and federal governments is known as federalism, and is a crucial internal check in our governing system, as Professor Rotunda emphasized, “to protect the liberty of the individual.” Liberty, together with the right and control of property, and the right of local self-determination, is the uniquely American constitutional formula for peace and prosperity.
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