“This is a tough case, but it is a case that can be made,” Assistant Attorney General Tony Rampton told the Commission on Federalism last week, when talking about the possible legal action to force the federal government to transfer control of federal lands to the state of Utah. The Enabling Act of the Utah Constitution, Rampton told the commission, contained “ambiguity…with what was intended with public lands.”
Utah’s Enabling Act, which Utah agreed to in 1894 in order to join the Union and become a state, specifically says that the people of Utah “…do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes…” However, in another section of the act there appears the legally ambiguous phrase “…and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States…”
For years, some lawmakers have argued that the word “shall” in the second phrase means that the United States has legally obligated itself to sell off the public lands in Utah. Those lawmakers, led by Representative Ken Ivory (Republican – West Jordan), say that Utah’s public schools have remained underfunded because Utah needs the proceeds of the sale of that public land (to private individuals and/or energy companies such as oil and gas) to pay for schools. Ivory, along several other Republican lawmakers have passed several pieces of legislation over the last few years, which attempt force the United States to sell of the land, or turn over control to the state legislature. However, opponents of the attempted takeover of public lands say that Ivory and his colleagues aren’t reading the enabling act correctly.
According to a blog post on Utah Politico Hub by Republican attorney Curt Bentley, “shall is a notoriously tricky word. Its use is disfavored by legal drafters because, [pullquote]”[Y]ou can’t sue the United States government based on prior policy; you can only enforce the contractual obligation. And, frankly, if you want to talk about breach of contract, you might want to talk about whether the State of Utah is now in breach of the Utah Enabling Act by claiming right and title to unappropriated public lands.” -GOP Attorney Curt Bentley[/pullquote] although it is supposed to connote certainty, it is nonetheless fraught with ambiguity. Similar to the word literally, which, depending on its usage now means either actually, or its antonym, figuratively, the word shall, depending on its usage, may mean the mandatory must, its antonym the permissive may, should, or simply point to some future time.” Bentley goes on to say that while the word “shall” is ambiguous, the earlier phrase saying that Utah “forever disclaims” any rights and titles to public land is perfectly clear, and that Ivory’s quest is a waste of public resources (it is estimated that Utah would spend several million taxpayer dollars on what could be a pointless lawsuit).
But Ivory and his supporters remained undeterred, pointing to the 1976 Federal Land Policy Land Management Act, when Congress passed a law deciding that many public lands would not be sold off. This policy change, in the minds of Ivory and his supporters, is seen as Congress changing the rules of the game and must be challenged.
Ivory faces an uphill battle, however, as the U.S. Supreme Court has ruled in several cases that Congress does, in fact, have the authority to change land policy, noting that federal law trumps state law.
The Commission, well aware of this fact, says that it still wants to press forward with plans to challenge federal policy; the argument being that in prior cases, federal courts have not clarified the supposedly ambiguous language in Utah’s (and other states’) enabling act.
Ivory, who is also the President of the Conservative American Lands Council, asked Rampton about the best way to remedy the situation, stating that [pullquote]”[Y]ou look at the map, and it just screams that something is fundamentally wrong.” -Rep. Ken Ivory[/pullquote] “you look at the map [of federal land ownership in the West compared to the East], and it just screams that something is fundamentally wrong. How much do those arguments play [with the courts]?”
“The court addresses fairness,” Rampton told the committee, “and that argument would be played.” Rampton also cited the “equal footing doctrine,” that says all states are given equal opportunities to succeed when founded. According to Rampton, this doctrine may be a viable route for the state to take to challenge Congress. He also speculated that five of the nine Supreme Court Justices would at least be willing to hear a state’s rights argument if it were presented to the court.
This does not mean that a challenge would be a cakewalk, however. “This is a case where you wouldn’t want to put all of your eggs in one basket.” Rampton warned the committee.
Eric Ethington contributed to this article.