Utah Asks U.S. to Give Back More Than 20 Million Acres of Land - NYTimes.com

Utah Asks U.S. to Give Back More Than 20 Million Acres of Land - NYTimes.com

Utah Asks U.S. to Return 20 Million Acres of Land

Erin Hooley for The New York Times

By KIRK JOHNSON

Published: March 23, 2012

DENVER — The conservative political movement that has rallied behind the cry of states’ rights in recent years on fronts including immigration and health care is now focusing its energies on a much older question in the American West: public lands.

Gov. Gary R. Herbert of Utah signed a bill on Friday asking the federal government to return millions of acres.

On Friday, Gov. Gary R. Herbert of Utah, a Republican, signed into law House Bill 148. It asks the federal government, which owns a majority of the land in the state, to give back more than 20 million acres. A similar measure, passed by the Arizona Senate last month, is awaiting further action in the Capitol in Phoenix. Bills patterned after Utah’s are being prepared for filing next year in Colorado, Idaho, Montana and New Mexico, lawmakers involved in the effort said.

Utah is also preparing lawsuits, for filing as early as next month, to reclaim thousands of sections of road that cross federal lands but that the state argues should properly be the province of the states and counties.

“This is not your father’s sagebrush rebellion,” said State Representative Ken Ivory, a Republican and chief sponsor of the Utah bill, referring to the wave of antifederal protests that rippled through the West in the 1960s and ’70s. “There are very sound legal bases for doing this.”

The federal government, Mr. Ivory and other proponents said, reneged on Congressional promises going back to the 1800s, which held that Washington’s control of tens of millions of acres in the West in national forests, rangelands and parks was only temporary. That pledge, they say, was written into contractual obligations in the founding documents of many states, and was followed through in some places but not others. The Midwest and Plains states, for example, are now almost entirely private lands, but hop a meridian or two west and the picture changes completely.

In some ways, theirs is an old claim — and critics say a musty one to boot. From the 1940s, when ranchers fumed over Franklin D. Roosevelt’s new rules about the grazing of cattle on federal land, to the 1960s and ’70s, when Nevada rose up to fight federal control over most of the state’s lands, periodic waves of anti-Washington vitriol have flamed in legislatures and courthouses in resentment of control by far-away bureaucrats.

Those past efforts invariably went nowhere, falling to legal precedent and federal Constitutional provisions that say Congress holds all the cards when it comes to federal lands. Many legal experts say they expect the same result this time. The Utah Office of Legislative Research and General Counsel, which analyzes proposed legislation, told lawmakers that United States Supreme Court decisions in public lands cases going back to the 1870s gave H.B. 148, “a high probability of being declared unconstitutional.”

Proponents said the new front line is different — in its legal arguments, based on the language under which states were granted their founding charters, its scope in aiming to advance across multiple states on an allied front, and the context of a judicial landscape, including the current mix of justices on the Supreme Court, which believers say seems more receptive to states’ rights assertions and skeptical of federal authority.

Mr. Ivory, the author of Utah’s bill, said the great bulwark defense of the federal public lands in the past has been that they are the property of all Americans — resources of national importance. But the opposite point, he said, is also perhaps more true and glaring than ever — that more intensive economic development on public lands should be of national value as well.

“If we unleash those resources in a responsible, sustainable manner, that’s a matter of national employment,” Mr. Ivory said. “That’s a matter of national economic G.D.P. growth; that’s a matter of national deficit and debt reduction.”

Election-year politics is adding further fuel. Mr. Herbert, who is running for election for the first time — he took office in 2009, filling a vacancy — is trying to fend off a political challenge from his right, led by Tea Party groups in Utah, and is facing his party’s convention next month. And the national debate over energy and gas prices, which are becoming an element in the presidential election, has also sharpened proponents’ arguments.

“If you look at a map of the United States, all the states in the East are private land,” said Al Melvin, a Republican state senator who sponsored the bill in Arizona, where the federal government owns 48 percent of the 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,” he added. “The 50 states are separate but not equal.”

Legal experts said the problem for the new state claims was that Congressional authority over federal land had been upheld over and over by the United States Supreme Court. If property rights are the issue being raised, many experts said, proponents of the new land drive are facing traditions and precedents that run deep in the law and culture.

“The core of it is that if somebody said to you, ‘You don’t own your house, I do,’ you would pull out a deed — that’s what the federal government will do,” said Professor Charles F. Wilkinson, who teaches federal public land law at the University of Colorado.

But Professor Wilkinson said the proponents have hit the nail on an issue that in many ways did create two different halves of the nation — the private-property states and the public-lands states — with tensions that have never really been resolved. “Should the United States government continue to own so much in this capitalist society?” he said. “That question has never gone away.”

What happened in the West is partly that the landscape was just different from the beginning. Huge stretches of mountain terrain and parched desert did not lend themselves to successful homesteading, which tidied up the East and Great Plains states in mile after mile of tidy if monotonous surveyor’s quadrants.

And by the time places like Utah were in line for statehood in the 1890s, ideas about conservation and potential future scarcity of natural resources — especially timber in those days — were becoming national priorities, leading to the first national forests beginning in the 1890s.

Fighters on the new public-lands front say the old formulas no longer hold. But they say that they have also learned what battles to avoid, and that some federal lands are in fact great to have around. The bills in Utah and Arizona exempt national parks, military installations and most national monument lands, for example — all of which, especially the parks, have become major rural economic engines.