Western States Attorney General's Legal Analysis of Utah's lawsuit

[katqanna]

Western States Attorney General's Legal Analysis of Utah's federal public land grab

Here is the 51 page report from the 11 Western Attorney Generals. The lawyers that worked on the report came from attorneys general offices in Alaska, Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming.

"The Conference of Western Attorneys General, made up of the top law officers in 15 western states and three U.S. territories, voted 11-1 to approve the report at their annual meeting in Idaho this summer."

Overall, the report found that the U.S. Supreme Court has repeatedly ruled that the Property Clause of the Constitution gives the U.S. government the right to own public lands and keep them public and the exclusive power to decide whether to dispose of them or sell them off.

While the court hasn't directly ruled on whether the U.S. government can keep the public lands forever, the court has made past statements indicating that the government can and has also found the government's authority under the Property Clause of the Constitution "has no limitations."

The report also says that while newer, Western states may be at an economic disadvantage with large portions of their land under federal control, legal arguments that federal land ownership unconstitutionally keeps them from having Equal Footing and Equal Sovereignty with older, Eastern states are weak.

One argument Utah has raised that attorneys general did not explore is whether any state's founding document gives it a claim to the land. The organization said the circumstances of each's state joining the union were unique and they'll leave that analysis to each state.

One of the findings of Utah's 3 proposed theories:

As a result of its research, the Subcommittee observes that to date, the United States Supreme Court consistently has held that: (1) public lands fall within the purview of the Property Clause; (2) the authority of the United States under the Property Clause has no limitations; (3) the Property Clause vests the United States with exclusive authority to decide whether “to dispose of” or sell public lands; and (4) under the Property Clause, the United States may withhold public lands from sale. No Supreme Court case has directly addressed the question of whether the Property Clause empowers the federal government to retain ownership of public lands indefinitely. In Stearns v. Minnesota, 179 U.S. 223 (1900) and Light v. United States, 220 U.S. 523 (1911), the Supreme Court explicitly stated that the United States may withhold public lands from sale indefinitely, but in both cases the statement about indefinite retention arguably was dicta. The readers of this Paper must draw their own conclusions as to whether the Supreme Court likely would follow Stearns and Light if squarely presented with the indefinite ownership question.

 

[Schaaf]

Hardly a surprise, but good to see continued support that shows the argument that the Federal Government has no right to manage these lands is unfounded.

 

[katqanna]

Friday and Saturday I was at Trout Unlimited's 2016 annual meeting here in Bozeman. They had a stream access meeting on Friday and a Public Lands meeting yesterday. There were TU members from all around the US.

At the Public Lands meeting yesterday, after the TU, TRCP and BHA presentations, they opened it up for public comments. There were people from the East that didn't know much about these subjects, didn't know about ALEC or Utah's ALC. One guy from the East asked why it wouldn't be better to give back the State's land?

Not being shy and busting at the seams, I had to raise my hand a few times and correct misinformation or flesh out missing information. At one point I explained this was like the lie repeated often enough it is accepted as the truth, explaining the territorial expansion treaties and that the States never owned this land to begin with, never, nothing to "return" or "give back". These lands belong to all US citizens. I think I am going to make that map the "sexy centerfold" on the next digital magazine Newsletter.

 

[MoGreen]

Good job kat :hump:

 

[James Riley]

. . . treaties and that the States never owned this land to begin with, never, nothing to "return" or "give back". These lands belong to all US citizens.

Maybe a cartoon showing the federal government telling the states "If there were any 'return' or 'give back' it could not be to you."

Behind them sits and Indian on a postage stamp holding a copy of "Nemo plus iuris ad alium transferre potest quam ipse habet".