Tuesday, August 5, 2014

Protecting Utah's Lands

Clean Air and Water

I received an award from Salt Lake Solar Day 2012 for sponsoring 2012 H.B. 262 Building Code Amendments, and continued working to adopt the current IECC (energy code for houses and buildings) during the 2013 session. That bill passed and the current code will be effective July 1, 2014. The amount of energy use and pollution caused by buildings is critical.  

I also worked for over a year to increase flexibility and ability for property owners to capture and use storm / rain water. At the end of the 2013 session, that bill passed the House, 75 to 0, and was signed by the Governor. We should be good stewards of the land, Extremes on both sides of this issue hurts our ability to live and work in our great state.

Protecting the Land

The Utah Constitution has the following provisions to protect lands if public lands are transferred to Utah.

Article XVIII, Section 1.   [Forests to be preserved.]
            The Legislature shall enact laws to prevent the destruction of and to preserve the Forests on the lands of the State, and upon any part of the public domain, the control of which may be conferred by Congress upon the State.

Article XX, Section 1.   [Land grants accepted on terms of trust.]
            All lands of the State that have been, or may hereafter be granted to the State by Congress, and all lands acquired by gift, grant or devise, from any person or corporation, or that may otherwise be acquired, are hereby accepted, and, except as provided in Section 2 of this Article, are declared to be the public lands of the State; and shall be held in trust for the people, to be disposed of as may be provided by law, for the respective purposes for which they have been or may be granted, donated, devised or otherwise acquired.

Section 2.   [School and institutional trust lands.]
            Lands granted to the State under Sections 6, 8, and 12 of the Utah Enabling Act, and other lands which may be added to those lands pursuant to those sections through purchase, exchange, or other means, are declared to be school and institutional trust lands, held in trust by the State for the respective beneficiaries and purposes stated in the Enabling Act grants.

To clarify this protection, in 2011 and 2012 I ran a bill. See for example:

While the land bill that passed in 2012 ran by Rep. Ivory excluded the 5 national parks, additional clarity could be used. 

Do we need to back off on Utah Lands vs the Federal Government?

Under the US Constitution, Art. 1, Sec. 8, Clause 17, and the 10th amendment, the Federal Government can not exercise exclusive jurisdiction or own land in Utah, unless it is for Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings, and it was purchased by the Consent of the Utah Legislature.

When Utah became a state, the Federal Government committed to selling the unappropriated public lands, extinguishing the title, and providing 5% of the proceeds of the sales to the State School Trust Fund.

I believe it would be better to have the land transferred to Utah as opposed to requiring the Federal Government sell the land to developers or other countries like China.

The Utah State Constitution is designed to protect the Public Land based on Article XVIII, Section 1, Forests to be preserved, and Article XX, Section 1, Land grants accepted on terms of trust. If the Federal Government sells or transfers any public land to Utah or others, 5% of the proceeds of the sales should got to the School Trust Fund. There is a gaping loophole in that process which should be fixed.

Question: Where does this come from? "When Utah became a state, the Federal Government committed to selling the unappropriated public lands, extinguishing the title, and providing 5% of the proceeds of the sales to the State School Trust Fund."

Answer: The Utah Constitution and the Utah Enabling Act. I believe it is pretty clear. Obviously some others don't, but look at what the feds did with the same language in the enabling act for states further east. They sold the lands, and extinguished the title. Utah didn't have the water and the Feds eventually stopped the homestead act and then FLIPMA violated the agreement from the feds side.

I would rather Utah keep the land, most as multi-use than the Feds sell the land to China. And yes, a 3 years ago many were pushing to make the Feds sell the land. I actively pushed back. The bill that the Gov. signed doesn't make the Feds sell the land to anyone, but recognize the Enabling Act and the US Constitution.

Utah Enabling Act:
SEC. 9. That five per centum of the proceeds of the sales of public lands lying within said State, which shall [SHALL} be sold by the United States subsequent to the admission of said State into the Union, after deducting all the expenses incident to the same, shall be paid to the said State, to be used as a permanent fund, the interest of which only shall be expended for the support of the common schools within said State.

Under Sec. 2
"unappropriated public lands"
" and that until the title thereto shall have been extinguished by the United States"

I believe the US was to sell the land and create a clear title. The US Supreme court in recent case involving Hawaii all agreed that was why the Feds had the land at statehood, to create a clear title, a transition. 

The US didn't sell the land in Utah, not all of it. Whether greed or water, it didn't happen. When Kleppe v. New Mexico overturned any states rights for land in 1976, Congress figured they could get away with anything. 1976 was when FLIPMA was signed, which officially put the US in violation of the Enabling Act. That is the point when Utah had claim for the land. You can argue that the US didn't have the US Constitutional power to create the agreement in the enabling act, since the US can't be owning large chunks of a state, under the US constitution. 

1976 is when the Feds tried to say they could drill in Utah Lake, whether Utah liked it or not. Utah went to the SCOTUS and won that fight. See some of the rulings below. 

So you have 2 choices, force the US to sell public lands in Utah to who knows, developers or China, or have the US recognize that they were only to hold the land in trust, violated their agreement, and transfer the land to Utah. I have fought against forcing the Feds to sell the land for years. I won that fight. The bill that passed the Utah Legislature did not do that. 

Some US Supreme Court rulings: