Friday, December 2, 2011

The Utah Lands Protection Act

The State is currently suing the Federal Government to take control of part of Utah's land. Additional proposals by others include forcing the Federal Government to sell or transfer our public lands. Who are are they going to sell our public lands to? To Utah as a State, or to only private developers for energy, or to China or others that hold the US National Debt?

Under my bill, 2012 HB 209,

with the proposed amendment:

the sovereign land definition under Utah Constitution and Utah law, would provide the land rights and use protection for not only the ranchers and ATV users, but also the hikers and the tourists. For all of Utah.

The framework for sovereign land management is found in the Utah Constitution (Article XX), state statute (primarily Chapter 65A-10), and administrative rule (R652). Article XX of the Utah Constitution accepts sovereign lands to be held in trust for the people and managed for the purposes for which the lands were acquired. Section 65A-2-1 of the Utah Code provides: “The division [of Forestry, Fire and State Lands, FFSL] shall administer state lands under comprehensive land management programs using multiple-use, sustained-yield principles.”

Utah Lake example:
Although sovereign land planning and management responsibilities lie with FFSL, other divisions of the Department of Natural Resources (DNR) also have management responsibilities for resources on and around Utah Lake. The Division of Wildlife Resources, for example, has plenary authority for managing wildlife in, on and around the lake. The Division of Parks and Recreation manages Utah Lake State Park and coordinates search and rescue and boating enforcement on the lake. The Division of Water Rights regulates the diversion and use of lake and tributary waters. The Division of Water Resources conducts studies, investigations and plans for water use. DNR divisions also regulate mineral extraction activities, conduct hydrologic research and identify and map geologic hazards around the lake.

The rights of Utah were protected under a US Supreme Court decision.

The U.S. Supreme Court, decided in 1987
Utah Div. of State Lands v. United States, 482 U.S. 193 (1987)

After the Federal Government, in 1976, issued oil and gas leases for lands underlying Utah Lake, a navigable body of water located in Utah, the State brought suit in Federal District Court for injunctive relief and a declaratory judgment that it, rather than the United States, had title to the lakebed under the equal footing doctrine. Under that doctrine, the United States holds the lands under navigable waters in the Territories in trust for the future States, and, absent a prior conveyance by the Federal Government to third parties, a State acquires title to such lands upon entering the Union on an "equal footing" with the original 13 States. The Utah Enabling Act of 1894 provided that Utah was to be so admitted.

Held: Title to Utah Lake's bed passed to Utah under the equal footing doctrine upon Utah's admission to the Union.


The Utah Lands Protection Act (2012) – Rep. Fred Cox

Redefines "Sovereign lands" to include those lands, owned by the state by virtue of its sovereignty; including land previously claimed by the federal government that is:

claimed by the state through judgment, decree, purchase, compact, exchange, gift, other conveyance, the United States Constitution, or other law; reclaimed by the state through judgment, decree, purchase, compact, exchange, gift, other conveyance, the United States Constitution, or other law; or obtained by the state through judgment, decree, purchase, compact, exchange, gift, other conveyance, the United States Constitution, or other law.

"Sovereign lands" does not include property owned by the federal government in accordance with the United States Constitution Article I, Section 8, Clause 17, or trust lands,

If any United States public lands owned or claimed by the federal government on January 1, 2012 become sovereign lands, then the State School Fund, pursuant to Utah Constitution shall receive 5% of the net proceeds from the sale of those lands.

If any of the following become sovereign lands, the division may not sell the sovereign lands or substantially change the use that relate to those sovereign lands from the use that were in effect for those sovereign lands on January 1, 2012:

(a) Arches National Park;
(b) Bryce Canyon National Park;
(c) Canyonlands National Park;
(d) Capitol Reef National Park; or
(e) Zion National Park.

Utah Land
The principle behind the bill is that 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. Clearly the 2/3 of the land in Utah "claimed" by the Federal Government does not fit within this constitutional power.

My contention is that Congress, the President, the US Supreme Court do NOT have constitutional authority to exercise exclusive jurisdiction or own land in Utah, and that the Utah Enabling Act, Sec 3, 4th paragraph and the Utah Constitution Article 3, section 2, be declared void ab initio, which means "to be treated as invalid from the outset," based on US Constitution Art. 1, Sec. 8, Clause 17 and the 10th amendment. As a State, the land should be Utah's
based on "equal footing" with the original 13 States.

Even if the Utah Enabling Act section be determined to be US Constitutional, the Federal Government promised in that agreement to sell the 2/3 of Utah, and not to keep it. They officially violated that agreement with FLIPMA in 1976, leaving Utah and not the Federal Government, jurisdiction and the owner of 2/3 of the land.

It is time the Federal Government recognize Utah is a State and not a Territory. I have been a resident of Utah for over 50 years. My father grew up in Hurricane Utah. My great great grandfather, Jehu Cox, settled the FT. Union area, donated the 10 acres for the fort, and his descendants have been working this land ever since. I care a great deal about this land.

For an article about the bill and protecting our land, see:


The Impact of Federal Land Policy on Utah’s Trust Lands
In much of Utah, trust lands are interspersed among federal public lands managed by the U.S. Bureau of Land Management (BLM). Because SITLA and its lessees rely on surrounding federal lands for access and because most mineral projects require a substantial land footprint to be
economic, the availability of federal public lands is critical to the economic use of school trust lands. Federal land-management policy – particularly with regard to wilderness and other conservation designations – directly affects Utah’s school trust. During FY 2011, SITLA staff spent hundreds of hours responding to various public land issues that affect the school trust.

Wilderness and Wild Lands
The issue of how much public land in Utah should be designated as wilderness has been contentious for decades. Under the federal Wilderness Act, wilderness is managed solely for primitive recreation, with motorized use, road access, and mineral development generally prohibited. Under the Federal Lands Policy and Management Act, BLM completed an inventory of BLM lands in Utah in 1991 and designated 3.2 million acres of BLM lands in Utah as wilderness study areas (WSAs).

WSAs are managed as wilderness pending either formal Congressional designation as wilderness or release from WSA status. Because of the lack of consensus in Congress, no sizeable designation or release of these lands has occurred since 1991.

This situation creates an unacceptable situation for Utah’s school trust lands. More than 100,000 acres of school trust lands are located inside WSAs. These lands have been largely inaccessible since 1991, and mineral leasing on the surrounding BLM lands has been terminated. Both of these actions have caused direct financial loss to the Trust.

Environmental groups have proposed enormous designations of wilderness more than the 3.2 million acres currently in WSAs. SITLA estimates that, if the most expansive of these proposals were enacted, more than one million acres of trust lands – between 1/4 and 1/3 of Utah’s entire trust portfolio – would be isolated. These expansive proposals, however, have failed to advance in Congress.

On December 22, 2010, Interior Secretary Ken Salazar issued a Secretarial Order creating a new class of protected BLM lands, so-called “wild lands.” These lands would be managed as de facto wilderness and would be withdrawn from mineral leasing in most instances. SITLA was extremely concerned with the “wild lands” Order.

The Secretary’s legal authority to create a whole new category of land management is doubtful; the criteria used to define “wild lands” were vague and subject to administrative whim. Most importantly, the Order threatened to administratively isolate hundreds of thousands of acres of additional trust lands from economic use.

In the intervening months, SITLA worked with the Utah congressional delegation and the Utah Attorney General’s office to challenge the “wild lands” policy legislatively and judicially. Litigation was filed by the State of Utah in April 2011 to have the Order set aside, and Congress subsequently defunded its implementation. Shortly after the close of the fiscal year, Secretary Salazar formally placed the Order in abeyance in favor of a more collaborative approach to the wilderness issue.