On Friday, Utah Gov. Gary Herbert signed House Bill 148, the latest volley in the long-running skirmish known as the Sagebrush Rebellion.
The bill demands the United States extinguish title to federally occupied lands — about two-thirds of the state — and transfer title to the state of Utah on or before Dec. 31, 2014. I prefer the term “occupied” to controlled or owned.
One major flaw with the bill is that it agrees ahead of time to pay the federal government 95 percent of the proceeds of any land sale to private parties. If a legal argument is to be made that the sovereign state of Utah should never have had the lands extorted from it as condition of statehood, then no tribute to the occupier is necessary.
The state’s Office of Legislative Research and General Counsel also practically throws in the towel with a legal note attached to the bill saying the Supreme Court has stated the Constitution grants Congress power over territory without limitation and cites the Supremacy Clause.
But the better argument to be made is one Nevada and other states have been arguing for years: The Equal Footing Doctrine.
The New York Times touches on this concept in an article today without ever using the phrase.
The paper quotes Al Melvin, a Republican state senator as saying, “If you look at a map of the United States, all the states in the East are private land. That’s why many of them are doing so well — it’s private land in Texas and North Dakota where they’re drilling for oil and fracking for gas. … The 50 states are separate but not equal.”
The argument today should be that the president lied when he said Oct. 31, 1864:
“Now, therefore, be it known, that I, Abraham Lincoln, President of the United States, in accordance with the duty imposed upon me by the act of congress aforesaid, do hereby declare and proclaim that the said State of Nevada is admitted into the Union on an equal footing with the original states.”
The same can be said for Utah, Arizona, New Mexico, Colorado, Idaho and Montana — all of which were required to “disclaim” sovereignty over the unappropriated lands inside their borders as a condition of statehood, a condition not required of other states, such as Texas.
“A unanimous U.S. Supreme Court recently declared that congress cannot change the ‘uniquely sovereign character of a state’s admission’ into the Union and that this proposition applies with even greater force where ‘virtually all of a State’s public lands are at stake.’ With trillions of dollars in mineral resources and millions of acres of our lands tied up by acts of congress, what is at stake is a $2 billion education funding gap and nearly $5 billion in federal funds to Utah that are seriously at risk from a fiscally reckless federal government,” said state Rep. Ken Ivory, chief sponsor of the bill. “After waiting 116 years, we simply can’t wait any longer for Washington to honor to Utah the same promise it made and kept with all states east of Colorado to transfer title the public lands in a timely fashion from being admitted into the Union.”
Gov. Herbert said, “This is only the first step in a long process, but it is a step we must take. Federal control of our public lands puts Utah at a distinct disadvantage, specifically with regard to education funding. State and local property taxes cannot be levied on federal lands, and royalties and severance taxes are curtailed due to federal land use restrictions. Federal control hampers our ability to adequately fund our public education system.”
Nevada passed a similar law in 1979 and it was signed by Gov. Bob List. The voters of Nevada approved an amendment to the state Constitution in 1996. In fact, in 1956 voters approved taxing federal land should Congress ever allow it.
But nothing has been done. The federal government today occupies somewhere between 83 and 92 percent of Nevada land, depending on which government resource you cite.
The Bureau of Land Management has spent seven years studying whether the Southern Nevada Water Authority — no matter whether you are for or against it — can acquire rights-of-way on BLM land for water wells and pipelines. Mining permits can take a decade to be approved or denied. Oil and gas leases are being denied over sage-grouse habitat without any explanation as to specifically why. Wind and solar projects — whatever you think of them — require years of expensive studies by legions of bureaucrats.
Why should the state have to beg the representatives and bureaucrats of the other 49 states to use its own land?