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H.J.R. 3

             1     

JOINT RESOLUTION ON FEDERAL TRANSFER OF

             2     
PUBLIC LANDS

             3     
2012 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Chief Sponsor: Roger E. Barrus

             6     
Senate Sponsor: Margaret Dayton

             7     
             8      LONG TITLE
             9      General Description:
             10          This joint resolution of the Legislature demands that the federal government extinguish
             11      title to Utah's public lands and transfer title to those lands to the state of Utah.
             12      Highlighted Provisions:
             13          This resolution:
             14          .    demands that the federal government transfer title of the public lands within Utah's
             15      borders directly to the state of Utah;
             16          .    urges the United States Congress to engage in good faith communication,
             17      cooperation, coordination, and consultation with the state of Utah regarding the
             18      transfer of title of public lands directly to the state of Utah;
             19          .    declares that the Legislature, upon transfer of title of the public lands directly to the
             20      state of Utah, intends to affirmatively cede the national park lands to the federal
             21      government, under Article I, Section 8, Clause 17 of the United States Constitution,
             22      on condition that the lands permanently remain national park lands and that they not
             23      be sold, transferred, or conveyed to any party other than the state of Utah;
             24          .    declares that, upon transfer of the public lands directly to the state of Utah, the
             25      Legislature intends to affirmatively cede to the federal government all lands
             26      currently designated as part of the National Wilderness Preservation System
             27      pursuant to the Wilderness Act of 1964;


             28          .    calls for the creation of a Utah Public Lands Commission to review and manage
             29      multiple use of the public lands, including access, open space, and sustainable yield
             30      of the abundant resources, and to determine, through a public process, the extent to
             31      which public land may be sold, if any; and
             32          .    urges, to the extent that the Public Lands Commission determines through a public
             33      process that any such land should be sold to private owners, that 5% of the net
             34      proceeds should be paid to the Permanent Fund for public education and 95% of the
             35      net proceeds should be paid to the federal government to pay down the national
             36      debt.
             37      Special Clauses:
             38          None
             39     
             40      Be it resolved by the Legislature of the state of Utah:
             41          WHEREAS, in 1780, the United States Congress resolved that "the unappropriated
             42      lands that may be ceded or relinquished to the United States, by any particular states, pursuant
             43      to the recommendation of Congress of the 6 day of September last, shall be granted and
             44      disposed of for the common benefit of all the United States that shall be members of the federal
             45      union, and be settled and formed into distinct republican states, which shall become members
             46      of the federal union, and have the same rights of sovereignty, freedom and independence, as the
             47      other states: . . . and that upon such cession being made by any State and approved and
             48      accepted by Congress, the United States shall guaranty the remaining territory of the said States
             49      respectively. (Resolution of Congress, October 10, 1780)";
             50          WHEREAS, the territorial and public lands of the United States are dealt with in
             51      Article IV, section 3, clause 2 of the United States Constitution, referred to as the Property
             52      Clause, which states, "The Congress shall have Power to dispose of and make all needful Rules
             53      and Regulations respecting the Territory or other Property belonging to the United States.";
             54          WHEREAS, with this clause, the Constitutional Convention agreed that the
             55      Constitution would maintain the "statu quo" that had been established with respect to the
             56      federal territorial lands being disposed of only to create new states with the same rights of
             57      sovereignty, freedom, and independence as the original states;
             58          WHEREAS, under these express terms of trust, the land claiming states, over time,


             59      ceded their western land to their confederated Union and retained their claims that the
             60      confederated government dispose of such lands only to create new states "and for no other use
             61      or purpose whatsoever" and apply the net proceeds of any sales of such lands only for the
             62      purpose of paying down the public debt;
             63          WHEREAS, with respect to the disposition of the federal territorial lands, the
             64      Northwest Ordinance of July 13, 1787, provides, "The legislatures of those districts or new
             65      States, shall never interfere with the primary disposal of the soil by the United States in
             66      Congress assembled, nor with any regulations Congress may find necessary for securing the
             67      title in such soil to the bona fide purchasers";
             68          WHEREAS, by resolution in 1790, the United States Congress declared "That the
             69      proceeds of sales which shall be made of lands in the Western territory, now belonging or that
             70      may hereafter belong to the United States, shall be, and are hereby appropriated towards
             71      sinking or discharging the debts for the payment whereof the United States now are, or by
             72      virtue of this act may be holden, and shall be applied solely to that use, until the said debt shall
             73      be fully satisfied";
             74          WHEREAS, the intent of the founding fathers to eventually extinguish title to all public
             75      lands was reaffirmed by President Andrew Jackson in a message to the United States Senate on
             76      December 4, 1833, where he explained the reasons he vetoed a bill entitled "An act to
             77      appropriate for a limited time the proceeds of the sales of the public lands of the United States
             78      and for granting lands to certain States": "I do not doubt that it is the real interest of each and
             79      all the States in the Union, and particularly of the new States, that the price of these lands shall
             80      be reduced and graduated, and that after they have been offered for a certain number of years
             81      the refuse remaining unsold shall be abandoned to the States and the machinery of our land
             82      system entirely withdrawn. It can not be supposed the compacts intended that the United States
             83      should retain forever a title to lands within the States which are of no value, and no doubt is
             84      entertained that the general interest would be best promoted by surrendering such lands to the
             85      States";
             86          WHEREAS, in 1828, United States Supreme Court Chief Justice John Marshall, in
             87      American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511 (1828), confirmed that no provision in
             88      the Constitution authorized the federal government to indefinitely exercise control over western
             89      public lands beyond the duty to manage these lands pending the disposal of the lands to create


             90      new states when he said, "At the time the Constitution was formed, the limits of the territory
             91      over which it was to operate were generally defined and recognised (sic). These limits
             92      consisted in part, of organized states, and in part of territories, the absolute property and
             93      dependencies of the United States. These states, this territory, and future states to be admitted
             94      into the Union, are the sole objects of the Constitution; there is no express provision whatever
             95      made in the Constitution for the acquisition or government of territories beyond those Limits.";
             96          WHEREAS, in 1833, referring to these land cession compacts which arose from the
             97      original 1780 congressional resolution, President Andrew Jackson stated, "These solemn
             98      compacts, invited by Congress in a resolution declaring the purposes to which the proceeds of
             99      these lands should be applied, originating before the constitution, and forming the basis on
             100      which it was made, bound the United States to a particular course of policy in relation to them
             101      by ties as strong as can be invented to secure the faith of nations" (Land bill veto, December 5,
             102      1833);
             103          WHEREAS, the United States Supreme Court, in State of Texas v. White, 74 U.S. 700
             104      (1868), clarified that a state, by definition, includes a defined sovereign territory, stating that
             105      "State", in the constitutional context, is "a political community of free citizens, occupying a
             106      territory of defined boundaries, and organized under a government sanctioned and limited by a
             107      written constitution, and established by the consent of the governed", and added, "This is
             108      undoubtedly the fundamental idea upon which the republican institutions of our own country
             109      are established";
             110          WHEREAS, in Shively v. Bowlby, 152 U.S. 1 (1894), the United States Supreme Court
             111      confirmed that all federal territories, regardless of how acquired, are held in trust to create new
             112      states on an equal footing with the original states when it stated, "Upon the acquisition of a
             113      Territory by the United States, whether by cession from one of the States, or by treaty with a
             114      foreign country, or by discovery and settlement, the same title and dominion passed to the
             115      United States, for the benefit of the whole people, and in trust for the several States to be
             116      ultimately created out of the Territory.";
             117          WHEREAS, the United States Supreme Court has affirmed that the federal government
             118      must honor its trust obligation to extinguish title to the public lands for the sovereignty of the
             119      new state to be complete, stating once "the United States shall have fully executed these trusts,
             120      the municipal sovereignty of the new states will be complete, throughout their respective


             121      borders, and they, and the original states, will be upon an equal footing, in all respects. . ."
             122      (Polland v. Hagan, 44 U.S. 212 (1845));
             123          WHEREAS, the enabling acts of the new states west of the original colonies established
             124      the terms upon which all such states were admitted into the union, and contained the same
             125      promise to all new states that the federal government would extinguish title to all public lands
             126      lying within their respective borders;
             127          WHEREAS, the United States Supreme Court looks upon the enabling acts which
             128      create new states as "solemn compacts" and "bilateral (two-way) agreements" to be performed
             129      "in a timely fashion";
             130          WHEREAS, under Section 3 of Utah's Enabling Act, Utah agreed to the same solemn
             131      compacts as states preceding in statehood, that until the title to unappropriated public lands
             132      lying within the state's boundaries "shall have been extinguished by the United States, the same
             133      shall be and remain subject to the disposition of the United States, and said Indian lands shall
             134      remain under the absolute jurisdiction and control of the Congress of the United States; . . .
             135      that no taxes shall be imposed by the State on lands or property therein belonging to or which
             136      may hereafter be purchased by the United States or reserved for its use";
             137          WHEREAS, the trust obligation of the federal government to timely extinguish title of
             138      all public lands lying within the boundaries of the state of Utah is made even more clear in
             139      Section 9 of Utah's Enabling Act as follows: "That five per centum of the proceeds of the sales
             140      of public lands lying within said State, which shall be sold by the United States subsequent to
             141      the admission of said State into the Union, after deducting all the expenses incident to the
             142      same, shall be paid to the said State, to be used as a Permanent Fund, the interest of which only
             143      shall be expended for the support of the common schools within said State";
             144          WHEREAS, the federal government confirmed its trust obligation to timely extinguish
             145      title to all public lands lying within the boundaries of the state of Utah by and through the 1934
             146      Taylor Grazing Act which declared that the act was established "In order to promote the
             147      highest use of the public lands pending its final disposal";
             148          WHEREAS, in 1976, after nearly 200 years of trust history regarding the obligation of
             149      Congress to extinguish title of western lands to create new states and use the proceeds to
             150      discharge its public debts, the United States Congress purported to unilaterally change this
             151      solemn promise by and through the Federal Land Policy Management Act (FLPMA), which


             152      provides, in part, "The Congress declares that it is the policy of the United States that the
             153      public lands be retained in Federal ownership, unless . . . it is determined that disposal of a
             154      particular parcel will serve the federal interest";
             155          WHEREAS, at the time of Utah's Enabling Act the course and practice of the United
             156      States Congress with all prior states admitted to the Union had been to fully extinguish title,
             157      within a reasonable time, to all lands within the boundaries of such states, except for those
             158      Indian lands, or lands otherwise expressly reserved to the exclusive jurisdiction of the United
             159      States;
             160          WHEREAS, the state of Utah did not, and could not have, contemplated or bargained
             161      for the United States failing or refusing to abide by its solemn promise to extinguish title to all
             162      lands within its defined boundaries within a reasonable time such that the state of Utah and its
             163      Permanent Fund for its Common Schools could never realize the bargained-for benefit of the
             164      deployment, taxation, or economic benefit of all the lands within its defined boundaries;
             165          WHEREAS, from 1780 forward the federal government only held bare legal title to the
             166      western public lands in the nature of a trustee in trust with the solemn obligation to timely
             167      extinguish title to such lands to create new states and to use the proceeds to pay the public debt;
             168          WHEREAS, the federal government complied with its promise and solemn obligation
             169      to imminently transfer title of public lands lying within the boundaries of all states to the
             170      eastern edge of the state of Colorado and also with the state of Hawaii;
             171          WHEREAS, by the terms of Utah's Enabling Act, Utah suspended its sovereign right to
             172      eventually tax the public lands within its borders, pending final disposition of the public lands;
             173          WHEREAS, the federal government has repeatedly and persistently failed to honor its
             174      promises and has refused to abide by the terms of its preexisting solemn obligations to
             175      imminently extinguish title to all public lands;
             176          WHEREAS, had Congress honored its promise to Utah to timely extinguish title to all
             177      public lands within Utah's boundaries, Utah would have had sovereign control over lands
             178      within its borders;
             179          WHEREAS, Congress, by and through FLPMA, unilaterally altered its duty in 1976 to
             180      extinguish title to all public lands within Utah's borders by committing to a policy of retention
             181      and a process of comprehensive land management and planning coordinated between the
             182      federal government, the states, and local governing bodies for access, multiple use, and


             183      sustained yield of the public lands;
             184          WHEREAS, despite the fact that the federal government had not divested all public
             185      lands within Utah's borders by 1976, this did not alleviate the federal government from its duty
             186      to extinguish title and divest itself of federal ownership of remaining public land in Utah by
             187      ceding such land directly to the state as it did with other states;
             188          WHEREAS, since the passage of FLPMA, the federal government has engaged in a
             189      persistent pattern and course of conduct in direct violation of the letter and spirit of FLPMA
             190      through an abject disregard of local resource management plans, failure and refusal to
             191      coordinate and cooperate with the state and local governments, unilateral and oppressive land
             192      control edicts to the severe and extreme detriment of the state and its ability to adequately fund
             193      education, provide essential government services, secure economic opportunities for wage
             194      earners and Utah business, and ensure a stable prosperous future;
             195          WHEREAS, under the United State Constitution, the American states reorganized to
             196      form a more perfect union, yielding up certain portions of their sovereign powers to the elected
             197      officers of the government of their union, yet retaining the residuum of sovereignty for the
             198      purpose of independent internal self-governance;
             199          WHEREAS, by compact between the original states, territorial lands were divided into
             200      "suitable extents of territory" and upon attaining a certain population, were to be admitted into
             201      the union upon "an equal footing" as members possessing "the same rights of sovereignty,
             202      freedom and independence" as the original states;
             203          WHEREAS, the federal trust respecting public lands obligates the United States,
             204      through their agent, Congress, to extinguish both their government jurisdiction and their title
             205      on the public lands that are held in trust by the United States for the states in which they are
             206      located;
             207          WHEREAS, the state and federal partnership of public lands management has been
             208      eroded by an oppressive and over-reaching federal management agenda that has adversely
             209      impacted the sovereignty and the economies of the state of Utah and local governments;
             210          WHEREAS, federal land-management actions, even when applied exclusively to
             211      federal lands, directly impact the ability of the state of Utah to manage its school trust lands in
             212      accordance with the mandate of the Utah Enabling Act and to meet its obligation to the
             213      beneficiaries of the trust;


             214          WHEREAS, Utah has been substantially damaged in its ability to provide funding for
             215      education and the common good of the state and to serve a sustainable, vibrant economy into
             216      the future because the federal government has unduly retained control of nearly two-thirds of
             217      the lands lying within Utah's borders;
             218          WHEREAS, Utah consistently ranks highest among all the states in class size and
             219      lowest in the nation in per pupil spending for education;
             220          WHEREAS, had the federal government disposed of the land in or about 1896, Utah
             221      would have, from that point forward, generated substantial tax revenues and revenues from the
             222      sustainable managed use of its natural resources to the benefit of its public schools and to the
             223      common good of the state and nation;
             224          WHEREAS, the federal government gives Utah less than half of the net proceeds of
             225      mineral lease revenues and severance taxes generated from the lands within Utah's borders;
             226          WHEREAS, Utah has been substantially damaged in mineral lease revenues and
             227      severance taxes in that, had the federal government extinguished title to all public lands, Utah
             228      would realize 100% of the mineral lease revenues and severance taxes from the lands;
             229          WHEREAS, the Bureau of Land Management's (BLM) failure to act affirmatively on
             230      definitive allocation decisions of multiple use activities in resource management plans has
             231      created uncertainty in the future of public land use in Utah and has caused capital to flee the
             232      state;
             233          WHEREAS, during the process of finalizing the most recent six Resource Management
             234      Plans, the BLM refused to consider state and local government acknowledgments of R.S. 2477
             235      rights-of-way or other evidence of the existence of R.S. 2477 rights-of-way in the Grand
             236      Staircase Escalante National Monument;
             237          WHEREAS, the BLM has demonstrated a chronic inability to handle the proliferation
             238      of wild horses and burros on the public lands, to the detriment of the rangeland resource;
             239          WHEREAS, the United States Army Corps of Engineers is proposing to extend its
             240      jurisdiction to regulate the waters of the United States to areas traditionally dry, except during
             241      severe weather events, in violation of the common definition of jurisdictional waters;
             242          WHEREAS, in 1996 the president of the United States abused the intent of the
             243      Antiquities Act by the creation of the Grand Staircase Escalante National Monument without
             244      any consultation with the state and local authorities or citizens;


             245          WHEREAS, the United States Fish and Wildlife Service is making decisions
             246      concerning various species on BLM lands under the provisions of the Endangered Species Act
             247      without serious consideration of state wildlife management activities and protection designed
             248      to prevent the need for a listing, or recognizing the ability to delist a species, thereby affecting
             249      the economic vitality of the state and local region;
             250          WHEREAS, the BLM has not authorized all necessary rangeland improvement projects
             251      involving the removal of pinyon-juniper and other climax vegetation, thereby reducing the
             252      biological diversity of the range, reducing riparian viability and water quality, and reducing the
             253      availability of forage for both livestock and wildlife;
             254          WHEREAS, Utah initially supported placing into reserve the six National Forests in
             255      Utah -- Ashley, Fishlake, Manti La-Sal, Dixie, Uinta, and Wasatch-Cache, because Utah was
             256      promised this action would preserve the forest lands as watersheds and for agricultural use --
             257      namely timber and other wood products, and grazing;
             258          WHEREAS, this vision and promise of agricultural production on the forest lands is the
             259      reason that the United States Forest Service was made part of the United States Department of
             260      Agriculture as opposed to the Department of the Interior;
             261          WHEREAS, the promise of preservation for agricultural use has been broken by the
             262      current and recent administrations;
             263          WHEREAS, logging, timber, and wood products operations on Utah's National Forests
             264      have come to a virtual standstill, resulting in forests that are choked with old growth
             265      monocultures, loss of aspen diversity, loss of habitat, and a threat to community watersheds
             266      due to insect infestation and catastrophic fire;
             267          WHEREAS, these conditions are the result of a failure to properly manage the forest
             268      lands for their intended use, which is responsible and sustained timber production, watersheds
             269      and grazing;
             270          WHEREAS, the only remedy for federal government breaches of Utah's Enabling Act
             271      Compact and breaches to the spirit and letter of the promises of FLPMA is for the state of Utah
             272      to take back title and management responsibility of federally-managed public lands, which
             273      would restore the promises in the solemn compact made at statehood;
             274          WHEREAS, under Article I, Section 8, Clause 17 of the United States Constitution, the
             275      federal government is only constitutionally authorized to exercise jurisdiction over and above


             276      bare right and title over lands that are "purchased by the Consent of the Legislature of the State
             277      in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and
             278      other needful Buildings";
             279          WHEREAS, the United States Supreme Court affirmed that the federal government
             280      only holds lands as a mere "ordinary proprietor" and cannot exert jurisdictional dominion and
             281      control over public lands without the consent of the state Legislature, stating "Where lands are
             282      acquired without such consent, the possession of the United States, unless political jurisdiction
             283      be ceded to them in some other way, is simply that of an ordinary proprietor (emphasis added).
             284      The property in that case, unless used as a means to carry out the purposes of the government,
             285      is subject to the legislative authority and control of the states equally with the property of
             286      private individuals."(Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525 (1885));
             287          WHEREAS, in a unanimous 2009 decision, the United States Supreme Court, in
             288      Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009), affirmed that Congress has no right
             289      to change the promises it made to a state's Enabling Act, stating, ". . . [a subsequent act of
             290      Congress] would raise grave constitutional concerns if it purported to 'cloud' Hawaii's title to
             291      its sovereign lands more than three decades after the State's admission to the Union . . .
             292      '[T]he consequences of admission are instantaneous, and it ignores the uniquely sovereign
             293      character of that event . . . to suggest that subsequent events somehow can diminish what has
             294      already been bestowed'. And that proposition applies a fortiori [with even greater force]
             295      where virtually all of the State's public lands . . . are at stake" (emphasis added, citation
             296      omitted);
             297          WHEREAS, citizens of the state of Utah have a love of the land and have demonstrated
             298      responsible stewardship of lands within state jurisdiction;
             299          WHEREAS, the state of Utah is willing to sponsor, evaluate, and advance the locally
             300      driven efforts in a more efficient manner than the federal government, to the benefit of all
             301      users, including recreation, conservation, and the responsible and sustainable management of
             302      Utah's natural resources;
             303          WHEREAS, the state of Utah has a proven regulatory structure to manage public lands
             304      for multiple use and sustainable yield;
             305          WHEREAS, the United States Congress disposed of lands within the boundaries of the
             306      states of Tennessee and Hawaii directly to those states;


             307          WHEREAS, because of the entanglements and rights arising over the 116 years that the
             308      federal government has failed to honor its promise to timely extinguish title to public lands and
             309      because of the federal government's breach of Utah's Enabling Act and breach of FLPMA,
             310      among other promises made, and the damages resulting from such breaches, the United States
             311      Congress should imminently transfer title to all public lands lying within the State of Utah
             312      directly to the State of Utah, as it did with Hawaii and Tennessee;
             313          WHEREAS, the Legislature of the state of Utah, upon transfer of title by the federal
             314      government of the public lands directly to the state, intends to cede the national park land to the
             315      federal government on condition that the lands permanently remain national park lands, that
             316      they not be sold, transferred, left in disrepair, or conveyed to any party other than the state of
             317      Utah;
             318          WHEREAS, the Legislature of the state of Utah, upon transfer of title by the federal
             319      government of the public lands directly to the state, intends to cede to the federal government
             320      all lands currently designated as part of the National Wilderness Preservation System pursuant
             321      to the Wilderness Act of 1964;
             322          WHEREAS, in order to effectively address the accumulated entanglements and
             323      expectations over Utah's public lands, including open space, access, multiple use, and the
             324      management of sustainable yields of Utah's natural resources, a Utah Public Lands
             325      Commission should be formed to review and manage multiple use of the public lands and to
             326      determine, through a public process, the extent to which public land may be sold, if any; and
             327          WHEREAS, to the extent that the Public Lands Commission determines through a
             328      public process that any such land should be sold to private owners, that 5% of the net proceeds
             329      should be paid to the Permanent Fund for Utah's public schools, and 95% of the net proceeds
             330      should be paid to the federal government to pay down the federal debt:
             331          NOW, THEREFORE, BE IT RESOLVED that the Legislature of the state of Utah
             332      demands that the federal government imminently transfer title to all of the public lands within
             333      Utah's borders directly to the state of Utah.
             334          BE IT FURTHER RESOLVED that the Legislature of the state of Utah urges the
             335      United States Congress in the most strenuous terms to engage in good faith communication,
             336      cooperation, coordination, and consultation with the state of Utah regarding the transfer of
             337      public lands directly to the state of Utah.


             338          BE IT FURTHER RESOLVED that, upon transfer of the public lands directly to the
             339      state of Utah, the Legislature intends to affirmatively cede the national park lands to the federal
             340      government, under Article I, Section 8, Clause 17 of the United States Constitution, on
             341      condition that the lands permanently remain national park lands, that they not be sold,
             342      transferred, left in substantial disrepair, or conveyed to any party other than the state of Utah.
             343          BE IT FURTHER RESOLVED that, upon transfer of the public lands directly to the
             344      state of Utah, the Legislature intends to affirmatively cede to the federal government all lands
             345      currently designated as part of the National Wilderness Preservation System pursuant to the
             346      Wilderness Act of 1964.
             347          BE IT FURTHER RESOLVED that the Legislature calls for the creation of a Utah
             348      Public Lands Commission to review and manage access, open space, sustainable yields, and the
             349      multiple use of the public lands and to determine, through a public process, the extent to which
             350      public land may be sold.
             351          BE IT FURTHER RESOLVED that, to the extent that the Public Lands Commission
             352      determines through a public process that any such land should be sold to private owners, that
             353      5% of the net proceeds should be paid to the Permanent Fund for the public schools, and 95%
             354      should be paid to the Bureau of the Public Debt to pay down the federal debt.
             355          BE IT FURTHER RESOLVED that copies of this resolution be sent to the United
             356      States Department of the Interior, the Majority Leader of the United States Senate, the Speaker
             357      of the United States House of Representatives, the members of Utah's congressional delegation,
             358      and the Governors, Senate Presidents, and Speakers of the House of the 49 other states.




Legislative Review Note
    as of 2-10-12 8:59 AM


Office of Legislative Research and General Counsel


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