In 2012, the Utah State Legislature enacted the Transfer of Public Lands Act (TPLA), which demanded that the federal government hand over the state’s ~30 million acres of national wildlife refuges, national forests, and other public lands by the end of 2014.
This did not happen, but Utah is still trying. It seeks to set up a legal test case, and the legislature has appropriated $4.5 million of the $14 million it will likely cost to do so. In 2010, Utah considered trying to use its power of eminent domain to seize the federal land. When it realized that it would have to pay real money for the land it condemned—and perhaps also remembering that the federal government has all the nuclear weapons—Utah decided to seek a judicial ruling instead.
In an article entitled “Utah’s Transfer of Public Lands Act: Demanding a Gift of Federal Lands” in the Vermont Journal of Environmental Law, author Nick Lawton argues persuasively that TPLA violates not only the U.S. Constitution but also the Utah Constitution. Lawton examines legal precedent as well as similar attempts by other states that came into the Union before and after Utah. Law review articles are always a good read if you want to geek out on public lands (and who wouldn’t?).
A report by Robert Keiter and John Ruple of the Wallace Stegner Center for Land Resources and the Environment at the University of Utah S. J. Quinney College of Law says the TPLA is “doomed to failure.” Conversely, a report by a New Orleans–based law firm says that “legitimate legal theories exist to pursue litigation.” This is why judges exist.
If the federal lands were given over to Utah—and if history is any guide (it is)—the lands would likely soon end up in private ownership.
Statehood: No Ordinary Act of Congress
An Act of Congress that either enables or confers statehood is no ordinary Act of Congress. It cannot be repealed or amended by a later Congress without the consent of the affected state. Nor can a state later try to change the deal without the consent of Congress. It is a binding covenant between the sovereign United States of America and the sovereign state that becomes part of the Union.
Statehood is something that is negotiated between the federal government and the territorial government or, in the case of the Republic of Texas, a sovereign nation. From the admission of Ohio in 1804, the “public land states” (those carved out of the public domain) were required, as part of the grant of statehood by the federal government, to disclaim any right to federal public lands within their borders.
For example, the states of Alabama (1819), Missouri (1821), Arkansas (1836), Iowa (1846), Kansas (1861), Oregon (1859), Nevada (1864), North Dakota (1889), South Dakota (1889), Montana (1889), Washington (1889), Idaho (1890), and Wyoming (1890) all expressly agreed to disclaimers very similar to the one Utah (1896) agreed to. The other public land states also similarly waived any interest in federal public lands within their borders.
Utah’s Path to Statehood
What became Utah first sought U.S. statehood in 1849 as the State of Deseret, but didn’t receive it until 1896. It took so long because Congress wasn’t keen on polygamy as were the Mormons, and it later passed a passel of federal laws against it. Over several decades, Utah sought admission to the Union many times, but polygamy kept getting in the way.
In 1890 the fourth president of the Church of Jesus Christ of Latter-day Saints, Wilford Woodruff (whose predecessors included Mormon Church founder Joseph Smith and Utah founder Brigham Young), said, “I now publicly declare that my advice to the Latter-day Saints is to refrain from contracting any marriage forbidden by the law of the land.”
The “Woodruff Manifesto” paved the way to statehood. In 1894 Congress passed the Utah Enabling Act, which set forth the conditions for statehood. The first condition was that there would be no more polygamy “forever.” The second condition: “That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundary thereof.”
In 1895, delegates to the Utah constitutional convention approved a constitution that “forever” banned the practice of polygamy and in the same article said, “The people inhabiting this State do affirm and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundary hereof.”
Just what Congress required. The people of Utah, by ratifying the Utah Constitution by vote on November 5, 1895, agreed to a deal with the United States of America. Utahans could have declined the deal but did not, thereby forever binding the State of Utah to the deal.
On January 4, 1896, President Grover Cleveland, having found that Utah had complied with its end of the bargain, proclaimed Utah to be the 45th state of the Union.
Oregon’s Path to Statehood: A Similar Deal
Oregon’s path to admission to the Union was slightly different but it made a similar deal. Besides polygamy not being an impediment, Oregon did almost all the paperwork—including its constitution—first, and then, by an Act of Congress on February 14, 1859, was declared to be the 33rd state of the Union, contingent upon acceptance by the state of certain conditions.
In the Oregon Statehood Act, Congress offered “to the said people of Oregon for their free acceptance or rejection, which, if accepted, shall be obligatory on the United States and upon the said State of Oregon” a very large number of sections (square miles) of federal public lands for education, public buildings, and what would become Oregon State University (as well as twelve salt springs) with the following condition (and others): “Provided, That the foregoing propositions, hereinbefore offered, are on the condition that the people of Oregon shall provide by an ordinance, irrevocable without the consent of the United States, that said State shall never interfere with the primary disposal of the soil within the same by the United States.”
In the first extra session of the Oregon Legislative Assembly later in 1859, a statute was enacted that said, among other things, “Be it ordained by the Legislative Assembly of the State of Oregon, That the said State shall never interfere with the primary disposal of the soil within the same by the United States.”
A deal’s a deal. Oregon and most other states, unlike Utah and a few other states, are honoring their solemn bargains.