The Transfer of Public Lands Movement: Taking “Back” Lands That Were Never Theirs and Other Examples of Legal Falsehoods and Revisionist History

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The Transfer of Public Lands Movement: Taking “Back” Lands That Were Never Theirs and Other Examples of Legal Falsehoods and Revisionist History SJ Quinney College of Law, University of Utah Utah Law Digital Commons Utah Law Faculty Scholarship Utah Law Scholarship 1-11-2017 The rT ansfer of Public Lands Movement: Taking “Back” Lands that were Never Theirs nda other Examples of Legal Falsehoods and Revisionist History John C. Ruple S.J. Quinney College of Law, University of Utah, [email protected] Follow this and additional works at: http://dc.law.utah.edu/scholarship Part of the Law Commons Recommended Citation Ruple, John C., "The rT ansfer of Public Lands Movement: Taking “Back” Lands that were Never Theirs and other Examples of Legal Falsehoods and Revisionist History" (2017). Utah Law Faculty Scholarship. 8. http://dc.law.utah.edu/scholarship/8 This Article is brought to you for free and open access by the Utah Law Scholarship at Utah Law Digital Commons. It has been accepted for inclusion in Utah Law Faculty Scholarship by an authorized administrator of Utah Law Digital Commons. For more information, please contact [email protected]. ** DRAFT ** 1 The Transfer of Public Lands Movement: Taking “Back” Lands that were Never Theirs and other Examples of Legal Falsehoods and Revisionist History John C. Ruple* I. Sagebrush Rebellion Revisited — The Public Lands Transfer Movement ..................................... 4 A. Utah’s Transfer of Public Lands Act ................................................................................................. 4 B. Why the Transfer of Public Lands Act Matters .............................................................................. 7 1. The Proliferation of Bad Ideas ...................................................................................................... 7 2. Transfer Rhetoric Fuels Revolt ................................................................................................... 10 II. A Brief History of the Public Lands .................................................................................................... 15 A. Acquisition of the Public Domain ................................................................................................... 15 B. Federal Land Ownership ................................................................................................................... 19 C. Federal Authority Over Land Pursuant to the Property Clause ................................................. 21 D. Federal Disposal of the Public Domain ......................................................................................... 25 E. Federal Retention of the Public Domain ....................................................................................... 26 III. Legal Arguments for Public Land Disposal ................................................................................... 30 A. Equal Footing / Equal Sovereignty ................................................................................................. 31 B. Enclave Clause Claims ....................................................................................................................... 36 C. The Extinguish Provision ................................................................................................................. 37 D. Denial of the Benefit of the Bargain ............................................................................................... 43 E. A Disposal Obligation, if it Exists, Does Not Require Gifts to States ...................................... 47 F. “Shall” and the Promise to Sell the Public Domain? .................................................................... 48 G. Statute of Limitations ........................................................................................................................ 50 IV. Policy Considerations and Unintended Consequences ................................................................ 54 A. Policy and Economics ....................................................................................................................... 55 1. The Cost of Managing the Targeted Lands ............................................................................... 56 2. Covering Management Costs ....................................................................................................... 58 3. Wildfire Cost and Policy ............................................................................................................... 65 4. Federal Mineral Reservations ....................................................................................................... 67 B. Unintended Consequences ............................................................................................................... 70 1. ESA Compliance ............................................................................................................................ 70 2. Public Access .................................................................................................................................. 74 3. Public Input .................................................................................................................................... 77 C. The Hollow Sound of Victory .......................................................................................................... 78 1. Surveying the Public Domain and the Minerals they Contain ................................................ 78 V. Understanding the Roots of Frustration and Exploring Alternatives to Land Transfers ........... 82 A. Policy and Demographic Evolution — And the Challenges They Wrought ........................... 82 B. Evolutionary Pain & Western Discontent ...................................................................................... 85 1. Fragmented Landscape; Divergent Objectives ......................................................................... 85 2. Perceived Lack of Voice in Public Land Management ............................................................ 89 3. Economic Instability ..................................................................................................................... 92 4. Bellicose State Rhetoric ................................................................................................................ 94 C. Alternatives to Land Transfers ......................................................................................................... 96 1. Comprehensive Review and Revision of Public Land Laws .................................................. 96 2. Adequate Agency Funding ........................................................................................................... 97 3. Collaboration .................................................................................................................................. 99 last updated: January 10, 2017 Electronic copy available at: https://ssrn.com/abstract=2897115 ** DRAFT ** 2 4. Rationalizing the Landscape ....................................................................................................... 101 5. Transition Assistance .................................................................................................................. 102 VI. Conclusion ......................................................................................................................................... 104 Figure 1 -- Public Land Survey and Land Grants ....................................................................................... 79 Table 1 -- Federal Land Grants to States ..................................................................................................... 26 Table 2 -- Payments from Federal Lands and State Severance Taxes FY 2014 ..................................... 46 Table 3 -- Recreation on BLM Lands (FY 2014) (in thousands) .............................................................. 75 last updated: January 10, 2017 Electronic copy available at: https://ssrn.com/abstract=2897115 ** DRAFT ** 3 Long a hotbed of discontent over federal public land management, Utah rekindled the smoldering “sagebrush rebellion” in 2012 when it passed the Transfer of Public Lands Act (TPLA),1 demanding that the federal government turn millions of acres of public land2 over to the state. Backed by a multi-million-dollar litigation budget, Utah’s efforts became a model for legislation that sprang up across much of the West, and transfer theories were adopted as part of the Republican National Committee Platform. A growing minority are also seizing on Utah’s legal theories to justify wresting public lands from the federal government, too often in violent ways. While unlikely to succeed in the courts, the transfer movement taps into a long history of Western antagonism towards what some characterize as an overbearing federal absentee landlord. This broad discontent, when combined with the threat of litigation, could lead to federal legislation devolving the public domain to the states — and that could forever reshape our nation. Part I summarizes the TPLA and the movement that the Act has spawned. Part II puts current demands into historical context, summarizing the acquisition and disposal of the public domain, federal authority over the public domain, and evolution of public land management policies. Part III explains and critiques the legal and policy arguments favoring compulsory public land disposal. Part IV summarizes the policy arguments behind, and the unintended consequences that would flow from, a public land transfer. Part V proceeds from the premise that it is not enough
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