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H.J.R. 39

This document includes House Floor Amendments incorporated into the bill on Wed, Mar 2, 2011 at 4:58 PM by lerror. -->              1     





Chief Sponsor: Roger E. Barrus

Senate Sponsor: Ralph Okerlund

             8      LONG TITLE
             9      General Description:
             10          This joint resolution of the Legislature urges Congress to relinquish all right and title of
             11      public lands in the state of Utah that are currently managed by the Bureau of Land
             12      Management and transfer title and jurisdiction to the state of Utah.
             13      Highlighted Provisions:
             14          This resolution:
             15          .    calls on the United States, through their agent, Congress, to relinquish to the state of
             16      Utah all right and title in those lands which were committed to the purposes of the
             17      state by terms of its enabling act compact with them and which now reside within
             18      the state as public or federal lands managed by the Bureau of Land Management
             19      which were reserved by Congress after the date of Utah statehood.
             20      Special Clauses:
             21          None
             23      Be it resolved by the Legislature of the state of Utah:
             24          WHEREAS, under the United States Constitution, the American states reorganized to
             25      form a more perfect union, yielding up certain portions of their sovereign powers to the elected
             26      officers of the government of their union, yet retaining the residuum of sovereignty for the
             27      purpose of independent internal self-governance;

             28          WHEREAS, the aims of the Constitutional Convention provided that state governments
             29      would clearly retain all the rights of sovereignty and independence which they before had and
             30      which were not exclusively delegated to the United States Congress;
             31          WHEREAS, among the rights of sovereignty held most jealously by the states was the
             32      right of sovereignty over the land within their respective borders;
             33          WHEREAS, in due time, the American states came to own vast tracts of land as federal
             34      territories;
             35          WHEREAS, by compact between the original states, territorial lands were divided into
             36      "suitable extents of territory" and upon attaining a certain population, were to be admitted into
             37      the union upon "an equal footing" as members possessing "the same rights of sovereignty,
             38      freedom and independence" as the original states;
             39          WHEREAS, the federal trust respecting public lands was established eight years before
             40      the Constitution by the Continental Congress and by the states which accepted the terms of the
             41      trust;
             42          WHEREAS, the federal trust respecting public lands was subsequently codified within
             43      the text of at least five clauses of the Constitution and is the foundation upon which the
             44      Constitution and the American union of states were erected for the benefit of every state
             45      without prejudice;
             46          WHEREAS, the federal trust respecting public lands obligates the United States,
             47      through their agent, Congress, to extinguish both their governmental jurisdiction and their title
             48      on the public lands that are held in trust by the United States for the states in which they are
             49      located;
             50          WHEREAS, for as long as the United States retains title in and jurisdiction over federal
             51      public lands in the state of Utah, the state is denied the same complete and independent
             52      sovereignty and jurisdiction that was expressly retained by the original states, and its citizens
             53      are denied the political right to establish or administer their own republican self-governance as
             54      is their right under the Equal Footing Clause;
             55          WHEREAS, Utah, by terms of its enabling act compact, disclaimed all right and title in
             56      the public lands within its borders;
             57          WHEREAS, "right and title" are elements of proprietorship, and "right and title" are
             58      neither sovereignty nor jurisdiction;

             59          WHEREAS, Utah is entitled, under the Equal Footing Doctrine, to the same rights of
             60      sovereignty, freedom, and independence as the original states;
             61          WHEREAS, Section 3 of Utah's Enabling Act, with respect to disposition of public
             62      lands, reads: "And said Convention shall provide by ordinance irrevocable with the consent of
             63      the United States and the people of said State . . . that until the title (to the unappropriated
             64      public lands) have been extinguished by the United States, the same shall be and remain
             65      subject to the disposition of the United States";
             66          WHEREAS, by these words the United States may only shelter public lands from the
             67      obligation of disposal by the consent of the state of Utah;
             68          WHEREAS, with the passage of the Federal Land Policy and Management Act
             69      (FLPMA) of 1976, the United States shifted from a policy of disposal of public lands and
             70      extinguishment of the Federal title to one of retention of public lands and their management in
             71      perpetuity through the United States Bureau of Land Management (BLM);
             72          WHEREAS, the BLM now H. [ has ] claims .H jurisdiction of over 22,600,000
             72a      acres of public land in
             73      Utah, which is nearly twice as much land as the 11,512,000 acres of land in private ownership;
             74          WHEREAS, the BLM was directed to manage the public lands for multiple use and
             75      sustained yield and to afford Utah and other Western States a share of the revenues from the
             76      production of the natural resources on public lands, including revenues from timbering, oil and
             77      gas production, and mining;
             78          WHEREAS, the state and federal partnership of public lands management has been
             79      eroded by an oppressive and over-reaching federal management agenda that has adversely
             80      impacted the sovereignty and the economies of the state of Utah and local governments;
             81          WHEREAS, Sections 6, 7, 8, and 12 of Utah's Enabling Act provided for land grants to
             82      fund critical public functions such as primary and secondary education, public buildings, and
             83      water development;
             84          WHEREAS, federal courts, including the United States Supreme Court, have
             85      recognized this land grant as the establishment of a trust, even a "solemn contract" between the
             86      United States and the state of Utah, with the United States in the role as settlor of the trust and
             87      the state of Utah in the role of trustee;
             88          WHEREAS, as settlor of the trust, the United States has an obligation to pursue actions
             89      and policies that support the trustee in its efforts to fulfill the purposes of the trust;

             90          WHEREAS, federal land-management actions, even when applied exclusively to the
             91      federal lands, directly impact the ability of the state of Utah to manage its trust lands in
             92      accordance with the mandate of the Utah Enabling Act and to meet its obligation to the
             93      beneficiaries of the trust;
             94          WHEREAS, the United States Department of the Interior has arbitrarily and illegally
             95      affected private contracts by cancelling duly awarded oil and gas leases at the time of public
             96      auction, the validity of which were subsequently upheld by a federal court of competent
             97      jurisdiction;
             98          WHEREAS, in October of 2008, the BLM completed six of its fundamental documents
             99      for the allocation of resource use and conservation on BLM lands, called Resource
             100      Management Plans, after up to eight years of study, public participation, and the expenditure of
             101      millions of dollars;
             102          WHEREAS, the BLM evaluated the allocation of all multiple-use activities in these
             103      plans, including the primary multiple-uses of grazing, timber, minerals, recreation, and
             104      conservation, and made definitive allocation decisions at the conclusion of the process;
             105          WHEREAS, the BLM's failure to act affirmatively on these definitive allocation
             106      decisions has created uncertainty in the future of public land use in Utah and has caused capital
             107      to flee the state;
             108          WHEREAS, during the process of finalizing the six Resource Management Plans, the
             109      BLM refused to consider state and local government acknowledgments of R.S. 2477
             110      rights-of-way, or other evidence of the existence of R.S. 2477 rights-of-way, which led to the
             111      closure of many R.S. 2477 rights-of-way in the Grand Staircase Escalante National Monument;
             112          WHEREAS, the Congress of the United States recently passed the Omnibus Public
             113      Land Management Act of 2009, which included the designation of lands as wilderness and
             114      national conservation areas in Washington County, Utah, and released all other lands to the
             115      general multiple-use mandate of the BLM;
             116          WHEREAS, the United States Department of the Interior has arbitrarily created a new
             117      category of lands, denominated "Wild Lands," and has superimposed these mandatory
             118      protective management provisions upon BLM operations and planning decisions in violation of
             119      the provisions of the Federal Land Policy and Management Act, the provisions of the
             120      Administrative Procedures Act, and Presidential Executive Order 13563 concerning openness

             121      in policymaking;
             122          WHEREAS, the new Wild Lands provisions threaten to reopen the issue of wilderness
             123      in Washington County, in violation of the resolution of the issue through Congressional action;
             124          WHEREAS, the creation of a new Wild Lands category, and the immediate effect of its
             125      mandatory restrictive provisions, has arbitrarily undermined the effectiveness of the six
             126      recently completed Resource Management Plans of the BLM in eastern and southern Utah, is
             127      contrary to the multiple-use mandate outlined by FLPMA and other federal law, and threatens
             128      to derail efforts underway locally to seek certainty in land use allocation decisions through
             129      Congressional actions, such as that recently completed in Washington County;
             130          WHEREAS, other proposals to make use of the important natural resources of the state,
             131      such as phosphate and beneficial range improvement proposals, are now under threat from
             132      these ill-conceived Wild Lands provisions;
             133          WHEREAS, the United States Department of the Interior has failed to enunciate a valid
             134      source of statutory or constitutional authority for the imposition of the restrictive Wild Lands
             135      provisions;
             136          WHEREAS, the cumulative effect of the Wild Lands provisions, the illegal decision to
             137      withdraw validly granted oil and gas leases, the duplicative Master Leasing Plan process, and
             138      the United States Department of Interior's disdain for the use of public review processes, has
             139      lead to the demise of a robust and viable oil and gas leasing program in Utah, which negates an
             140      important revenue source to the state, and eventually jobs for the citizens of Utah;
             141          WHEREAS, the BLM has demonstrated a chronic inability to handle the proliferation
             142      of wild horses and burros on the public lands, to the detriment of the rangeland resource;
             143          WHEREAS, the United States Department of Agriculture has repeatedly tried to
             144      impose severe restrictive management provisions on lands defined as inventoried roadless
             145      areas, in violation of Congressional authorities, as reviewed by a federal court of competent
             146      jurisdiction;
             147          WHEREAS, the United States Army Corps of Engineers is proposing to extend its
             148      jurisdiction to regulate the waters of the United States to areas traditionally dry, except during
             149      severe weather events, in violation of the common definition of jurisdictional waters;
             150          WHEREAS, in 1996, the President of the United States abused the intent of the
             151      Antiquities Act by the creation of the Grand Staircase Escalante National Monument without

             152      any consultation with state and local authorities or citizens;
             153          WHEREAS, the BLM's Resource Management Plan for the Kanab Field Office
             154      eliminated the filming of movies and filming for commercial purposes within the Grand
             155      Staircase-Escalante National Monument, thereby eliminating a source of economic opportunity
             156      for Kane County through the loss of use of its iconic "Little Hollywood" film site and other
             157      locations;
             158          WHEREAS, bureaucrats within the United States Department of the Interior are
             159      assembling information to prepare for further designations without consultation;
             160          WHEREAS, the United States Fish and Wildlife Service is making decisions
             161      concerning various species on BLM lands under the provisions of the Endangered Species Act
             162      without serious consideration of state wildlife management activities and protections designed
             163      to prevent the need for a listing, or recognizing the ability to delist a species, thereby affecting
             164      the economic vitality of the state and local regions;
             165          WHEREAS, the BLM has not authorized all necessary rangeland improvement projects
             166      involving the removal of pinyon-juniper and other climax vegetation, thereby reducing the
             167      biological diversity of the range, reducing riparian viability and water quality, and reducing the
             168      availability of forage for both livestock and wildlife;
             169          WHEREAS, differences of opinion about the appropriate use of the public lands has
             170      created a massive logjam in the advancement of any proposal for use of the public lands,
             171      whether for energy production, recreation, conservation, timber production, or similar uses;
             172          WHEREAS, the states have been instrumental in convening groups of stakeholders to
             173      consider protection for and responsible use of federal lands;
             174          WHEREAS, efforts in Washington County, Utah, the Owyhee region of Idaho, and the
             175      Front Range region in Montana have involved many various stakeholders, including ranchers,
             176      energy officials, environmental groups, and state and local government officials in an effort to
             177      achieve agreement on proposals for wilderness and other congressionally established
             178      conservation units, lands available for local privatization of lands, and areas available for
             179      traditional multiple-use;
             180          WHEREAS, these efforts led to Congressional approval of a jointly prepared proposal
             181      in Washington County, Utah, and to other proposals currently pending before Congress;
             182          WHEREAS, the state is willing to sponsor, evaluate, and advance these locally driven

             183      efforts in a more efficient manner than the federal government, to the benefit of all users,
             184      including recreation, conservation, and the responsible development of energy, grazing, timber,
             185      and other economic industries;
             186          WHEREAS, citizens of the state of Utah have a love of the land and have demonstrated
             187      responsible stewardship of lands within state jurisdiction;
             188          WHEREAS, the state of Utah has a proven regulatory structure to manage public lands
             189      for multiple use and sustained yield;
             190          WHEREAS, federal land management policies are eroding the fundamental pillars of
             191      sovereignty, freedom, and independence upon which all states and the state of Utah are
             192      founded under the Equal Footing clause; and
             193          WHEREAS, by means provided under the Constitution, damaged states may assert their
             194      rightful claim to the public lands within their borders and restore the constitutional design for
             195      the benefit of present and future generations H. [ : ] ; and
             195a           WHEREAS, Utah fully reserves and asserts all sovereign and constitutional claims
             195b      to its public lands: .H
             196          NOW, THEREFORE, BE IT RESOLVED, that the Legislature of the state of Utah calls
             197      on the United States, through their agent, Congress, to relinquish to the state of Utah all right,
             198      title, and jurisdiction in those lands that were committed to the purposes of this state by terms
             199      of its enabling act compact with them and that now reside within the state as public lands
             200      managed by the Bureau of Land Management that were reserved by Congress after the date of
             201      Utah statehood.
             202          BE IT FURTHER RESOLVED, that a copy of this resolution be sent to the Secretary of
             203      the United States Department of Interior, to the United States Director of the Federal Bureau of
             204      Land Management, to the Majority Leader of the United States Senate, to the Speaker of the
             205      United States House of Representatives, and to the members of Utah's Congressional
             206      Delegation.

Legislative Review Note
    as of 2-18-11 6:17 AM

Office of Legislative Research and General Counsel

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