12/10/2014 05:27 pm ET Updated Feb 09, 2015

Transfer Public Lands? Why Would We Do That?

If Congress doesn't hand over 30 million acres of national public lands and minerals to the state of Utah by the end of December 2014, then watch out. The people of Utah have spoken and they want the rest of us to give them a treasure trove of recreation areas, national monuments, national forests, and wide open, spectacular red rock country that belongs to us all as Americans. Oh, and they want all of the minerals such as oil and gas and coal that lies beneath it too.

Utah claims it has been treated unfairly. Utah argues that it is unfair to western states that the U.S. succeeded in selling all of the public lands in the eastern states but not in the western states. Early homesteading laws focused on selling land that could be used for agriculture and family farms. Eastern lands were timbered, had rich soil and benefited from ample rainfall and proximity to markets. The average annual precipitation in the original thirteen states is 43 inches, while in Utah it is 12 inches, requiring extensive irrigation infrastructure to support most agricultural crops that would not be available to homesteaders for decades.

Utah claims the national lands in its state have no legal standing. The Supreme Court has consistently read the Property Clause broadly in an unbroken line of cases going back to 1840, never finding any limit to congressional power over public lands including the fundamental decision of whether to keep or dispose of land. All western states accepted the U.S. Constitution, including the Property Clause, as the supreme law of the land as condition of statehood and no state legislation can unilaterally disavow the Constitution. Under the Supremacy Clause, federal law wins out over state law and challenges to federal ownership and management of public lands have repeatedly failed.

Frustration at national retention of public lands is not new; the first "Sagebrush Rebellion" began in the late '70s with states expressing frustration over changing national values for the western public lands. Reminiscent of Utah's recent transfer law, Nevada enacted a state law asserting state title to public lands within Nevada's boundaries and seven states followed suit. While none of these laws were found to be constitutional or held any sway with Congress, we are seeing a resurgence in western state legislatures revisiting the exact same claims that have been found to be both unconstitutional and bad policy. State legislation calling for, or studying, the transfer of national public lands to Western states has been debated or recently passed in eight states.

Utah claims there was an obligation to sell all of the national lands within its borders since state enabling acts guarantee the state 5 percent of the revenue from sales and the state was counting on full and complete liquidation of national lands when it decided to enter the Union. However, at the time Utah entered the Union in 1896, nearly 19 million acres in three national parks and 11 national forests were already reserved as national assets within the territories that would soon become the western states. Claims that the states had expectations that all of the public lands within their boundaries would be sold by the United States belie the historical reality of the time.

Utah claims they can make money for their schools and government functions such as fighting wild fires. A recent study and economic analysis of the proposed transfer determined that "forecasting the full economic effects of a land transfer from the federal government to the state of Utah is simply not possible." Despite this, the study goes on to say that it would cost the state of Utah about $33 million more to manage these lands than the federal government currently spends (estimated in the range of $248 to $280 million dollars per year). The study paid particular attention to the mineral resources within the state including oil, gas and coal. Full and aggressive development of these resources would be needed to fund overall land management and the study found that "the land transfer could be profitable for the state if oil and gas prices remain stable and high and the state assumes an aggressive approach to managing its mineral lease program." Given the recent decreasing prices for oil and gas and its historic volatility, these are fiscally dangerous assumptions.

The Utah study looked at a series of transfer scenarios to predict potential revenue. Even though the transfer legislation does not say that the Utah School and Institutional Trust Lands Administration (SITLA) would manage the lands the scenarios show various levels of minerals royalties going to SITLA. This is an important consideration since the study assumes that all of the revenue raised by the land transfer would be available to offset costs to manage the lands. However, revenue raised by the SITLA goes into the permanent fund and can only be used for public education. That means, it may not be available for fighting wildfires, deferred maintenance, closing abandoned mines and other costs identified in the study. A new study in Idaho shows that state would lose up to $111 million dollars a year if they took over the public lands. Since western states require a balanced state budget it is reasonable to assume that the increased costs of managing additional lands would need to be met by increasing state taxes and user fees, developing currently undeveloped lands and auctioning off lands to the highest bidder.

Only Congress has the power to transfer national lands and minerals. Legislation would need to pass and be signed into law that would transfer what is currently a national asset owned by all Americans over to the citizens of Utah. Even if the majority of Americans decided it was a good idea to be robbed of their natural heritage, why would they choose to grant this beneficence only on Utah? Convincing Congress to forgo billions of dollars of annual revenue for the U.S. Treasury and to embark on a program to give away economically important national assets would surely be an uphill battle. Why would we do that?