First Substitute H.C.R. 1

1

ESCALANTE NATIONAL MONUMENT RESOLUTION
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Thomas Hatch
5 A CONCURRENT RESOLUTION OF THE LEGISLATURE AND THE GOVERNOR
6 EXPRESSING SUPPORT FOR THE SCHOOL AND INSTITUTIONAL TRUST LANDS
7 ADMINISTRATION AND THE BOARD OF TRUSTEES IN THEIR EFFORTS TO CARRY
8 OUT THEIR RESPONSIBILITY TO PROTECT ASSETS IN THEIR CHARGE FOR UTAH'S
9 SCHOOL CHILDREN; ENCOURAGING THE SCHOOL AND INSTITUTIONAL TRUST
10 LANDS ADMINISTRATION TO EXAMINE ALL CAUSES OF ACTION CONCERNING
11 LITIGATION DESIGNED TO RECTIFY THE APPARENT BREACH OF THE BILATERAL
12 CONTRACT WITH THE STATE CAUSED BY THE CREATION OF THE MONUMENT;
13 AND SUPPORTING REQUIRED LITIGATIVE ACTIONS OF THE SCHOOL AND
14 INSTITUTIONAL TRUST LANDS ADMINISTRATION DESIGNED TO PROTECT THE
15 INTERESTS OF UTAH'S SCHOOL CHILDREN.
16 Be it resolved by the Legislature of the state of Utah, the Governor concurring therein:
17 WHEREAS on September 18, 1996, President Clinton declared 1.8965 million acres in
18 southern Utah as the Grand Staircase-Escalante National Monument;
19 WHEREAS the President's action abused the purpose of the 90-year-old Antiquities Act,
20 which allows him to act without congressional approval, by significantly over-reaching in the
21 number of acres designated;
22 WHEREAS the President ignored repeated requests to work through legislative processes
23 already in place under the National Environmental Policy Act (NEPA) and the Federal Land Policy
24 and Management Act (FLPMA) to determine areas appropriate for designation as national
25 monuments and wilderness areas;
26 WHEREAS the President ignored repeated requests from Utah's elected leaders to
27 negotiate a compromise;

1 WHEREAS the President failed to adequately consider the social implications of national
2 monument designation, including the fact that 176,000 surface acres of Utah's school trust lands
3 lie within the designated areas;
4 WHEREAS this land was given to the state as part of a bilateral compact with the United
5 States of America (Enabling Act and Article X, Utah Constitution);
6 WHEREAS this land grant was "in the nature of a contract, with bargained for
7 consideration exchanged between two governments" (Utah v. Andrus, 486 F. Supp. 995, 1979);
8 WHEREAS the land is to be managed for the exclusive benefit of the "common schools"
9 (Utah Enabling Act);
10 WHEREAS this contract has been interpreted by the United States Supreme Court as
11 imposing a trust obligation on the state, including attendant fiduciary duties and the duty of
12 undivided loyalty to the trust beneficiaries (Lassen v. Arizona, 385 U.S. 458);
13 WHEREAS in 1994 the Legislature passed, and the Governor signed, legislation
14 reaffirming the purpose of the trust, reaffirming the use of standard trust principles, and providing
15 that the beneficiaries of the trust do not include "other governmental institutions or agencies, the
16 public at large, or the general welfare of the state" (Section 53C-1-102);
17 WHEREAS the 1994 legislation further provided that "the trustee must be concerned with
18 both income for the current beneficiaries and the preservation of trust assets for future
19 beneficiaries", thereby requiring a "balancing of short and long term interests";
20 WHEREAS the immediate effect of the designation is the creation of about 176,000 surface
21 acres and 200,700 mineral acres of school trust land within a federal reservation keyed to
22 preservation, called "inholdings";
23 WHEREAS there is concern that the monument is larger than that necessary for the proper
24 care and management of the objects to be protected by the monument, contrary to the requirements
25 of the Antiquities Act, thereby including an excessive amount of school trust lands, and including
26 trust land resources that should not be within the monument;
27 WHEREAS similar inholdings were created in the creation of national parks, forests, and
28 Indian reservations, amounting to about 200,000 acres of trust lands;
29 WHEREAS both the School and Institutional Trust Lands Administration and the federal
30 government desire to exchange the trust lands within these preservation areas for federal lands or
31 other assets elsewhere in Utah, and are working toward that end;

- 2 -

1 WHEREAS no exchanges of land have been consummated with the federal government
2 for over a decade;
3 WHEREAS to succeed, an exchange process must determine: (1) the value of the lands to
4 be exchanged and what standards are to be used to determine value; (2) what federal assets are
5 available for the exchange; and (3) how the School and Institutional Trust Lands Administration
6 is to keep the federal government at the negotiation table;
7 WHEREAS the President, in his remarks establishing the monument, stated that
8 "reasonable differences in valuation" of the school trust lands should be resolved in favor of the
9 school trust;
10 WHEREAS a major difficulty in valuation under the process set out in Public Law 103-93
11 is the lack of information about mineral resources, which is directly tied to restrictive federal
12 management;
13 WHEREAS in recent discussions in the United States Congress concerning wilderness
14 designation in Utah, the Interior Department unilaterally created the impression of a vast disparity
15 in value determinations for the school trust lands involved by looking only at current revenue
16 which, because the lands have been in wilderness study areas since the early 1980's, is necessarily
17 low;
18 WHEREAS for all federal minerals, the state of Utah is already entitled to half of the
19 revenue from leasing and production, therefore this half of the revenue is not available to
20 compensate the trust for assets in the monument;
21 WHEREAS portions of the monument contain areas of spectacular scenery, while other
22 portions are common and typical of many other areas in the West;
23 WHEREAS tourism is a high growth industry, especially in southern Utah, thereby
24 providing opportunity for income from the trust lands within and adjacent to the monument;
25 WHEREAS in his remarks, the President directed the Secretary of the Interior to start a
26 three-year planning process for the management directives for the monument;
27 WHEREAS the director of the Bureau of Land Management in Utah has stated that
28 anything that could be done on school trust lands on the day before the monument was established
29 can be done on the day after establishment; and
30 WHEREAS this planning process should not be interpreted as a moratorium on all
31 activities in the monument because planning is an adaptive process:

- 3 -

1 NOW, THEREFORE, BE IT RESOLVED that the Legislature of the state of Utah, the
2 Governor concurring therein, support the School and Institutional Trust Lands Administration and
3 the board of trustees in their efforts to carry out their responsibility to protect the assets in their
4 charge for the school children of Utah.
5 BE IT FURTHER RESOLVED that the Legislature and the Governor encourage the board
6 of trustees to examine all causes of action concerning litigation against the United States designed
7 to rectify the apparent breach of the bilateral contract with the state caused by the creation of the
8 Grand Staircase-Escalante National Monument, including a challenge that the size of the
9 monument is not the smallest size necessary to protect the objects of interest, as required by the
10 Antiquities Act; an examination of the process by which the President made the determination; and
11 options for compensation under the takings provision of the Fifth Amendment to the United States
12 Constitution.
13 BE IT FURTHER RESOLVED that the Legislature and the Governor support required
14 litigative actions by the School and Institutional Trust Lands Administration designed to protect
15 the interests of Utah's school children.
16 BE IT FURTHER RESOLVED that copies of this resolution be sent to the President h AND
16a VICE-PRESIDENT h of the
17 United States, the Speaker of the United States House of Representatives, the United States
18 Secretary of the Interior, the School and Institutional Trust Lands board of trustees, the School and
19 Institutional Trust Lands Administration, and the members of Utah's congressional delegation.

lilac-February 11, 1997

- 4 -