Utah’s Public Lands War with Federal Government is Just Getting Started

Utah Attorney General Sean Reyes says the state has a “monumental” fight on its hands in the public lands war with the federal government.

Screen Shot 2014-08-30 at 9.01.31 PMIn an article originally published on ksl.com (www.ksl.com/?sid=31319153&nid=148&title=utahs-public-lands-war-with-federal-government-continues&s_cid=queue-1), Sean Reyes outlines his view of where things stand.

SALT LAKE CITY — Utah Attorney General Sean Reyes said the state has a “monumental” fight on its hands in the public lands war with the federal government.

So it when Utah takes its shot, it had better be prepared.

“When it comes to litigation, we have one shot. If we take a shot and we miss, that could curtail or grind to a halt all the efforts we are doing,” Reyes told a committee of lawmakers Wednesday.

The inaugural meeting of the Commission on the Stewardship of Public Lands — comprising eight state senators and representatives tasked to meet for five years — delved into some of the intricacies of waging such a battle, including the array of strategies that might be taken.

Reyes said the state will not have a legal complaint ready by its self-imposed Dec. 31 deadline found in the 2012 passage of the Transfer of Public Lands Act, which advises the federal government to take action by that date or risk a lawsuit.

“We are taking this methodically, which is why I am loath to make any commitments about when a case would be filed,” he said. “I know there are those who would have preferred that we file litigation (Tuesday). I understand the emotion of that.”

Afterward, Reyes said he saw the demand in HB148 as a clear signal to the federal government about the state’s intent, and a conversation starter that helps to frame the angst of Western states and federal land ownership. He said a complaint would not be ready to file until six months or a year out.

They did a lot of things we are trying to avoid. They filed lawsuits based on theories that did not pan out. They took inconsistent positions. They failed to do the groundwork in terms of existing interests on the land, so you had constituencies who came out against it — grazing, farming, recreation interests. These, I think, should have been supportive constituencies.

–Tony Rampton, Utah director of public lands litigation

Tony Rampton, Reyes’ newly appointed director of public lands litigation, said Utah’s efforts to wrest control of Bureau of Land Management or Forest Service lands need to avoid the mistakes of the Sagebrush Rebellion, a political movement of the 1970s and ’80s over federal land control.

“They did a lot of things we are trying to avoid. They filed lawsuits based on theories that did not pan out. They took inconsistent positions,” Rampton said. “They failed to do the groundwork in terms of existing interests on the land, so you had constituencies who came out against it — grazing, farming, recreation interests. These, I think, should have been supportive constituencies.”

Reyes said it is possible the state would seek a direct appeal to the U.S. Supreme Court via original jurisdiction to settle the issue or the state could file an injunction. A whole host of options lay in between, he added, including building a legal case that embraces other states’ complaints in a show of force like that in the successful tobacco settlement agreement in 1998, when states settled Medicaid lawsuits against the tobacco industry.

“Sharing risk and sharing cost is probably advisable,” he said.

Rep. Mel Brown, R-Coalville, sought and received the unanimous approval of the commission for the establishment of a working group or subcommittee.

“We need the professional expertise to find out what is constitutionally possible and what it would cost us to engage the best possible constitutional lawyers in the United States, and how we intend to utilize them if we could,” he said.

Brown added that policymakers should want the issue of federal land control settled, not only because of the importance of the fight but because of how the complaints have persisted.

“In my view, we have to have some information from the best people in the nation on whether there is a case to be brought,” he said.

Added commission member Sen. Jim Dabakis, D-Salt Lake City, “It is in the interest of the state of Utah to get this question of jurisdiction settled once and for all.”

The commission grew out of legislation passed earlier this year as part of the state’s fight against the federal government over its ownership of lands within Utah’s borders.

Supporters of the lands cause assert BLM and Forest Service controlled lands were promised to Utah and other states in enabling act legislation, and the federal government has gone back on its promise.

Rep. Ken Ivory, R-West Jordan and architect of the movement, said six other states are pursuing the same effort to achieve parity with Eastern states, of which none have the extent of federal land ownership like those west of Colorado.

Critics, including a variety of environmental groups, counter that the effort is foolhardy, a waste of taxpayer dollars and is grounded in the desire to sacrifice landscapes to resource extraction.

Rep. Kevin Stratton, R-Orem, and House chairman of the commission, said the state’s effort is not about “privatizing” vast swaths of lands — or there would not be a stewardship commission.

“We are a public lands state,” Stratton said.

Rampton advised the commission that the state’s efforts would be wise to focus not so much on what the federal government has done, but what he says it has not.

“I don’t think anyone can objectively look at federal land policy and come to the conclusion that it is working,” he said. “It is not working on the range, not working on the forest, not working on the extractive industry, not working for the recreationers, not working for the local communities trying to survive. And Washington is not aware of that. Washington is not working on that.”