Presenter argues US right to public lands in Utah

An American flag flies at Zion National Park with Watchman Peak in the background. Zion National Park, Utah, date not specified | Photo by Robert_Ford / iStock / Getty Images Plus, St. George News
Ray Kuehne | Photo courtesy of Dixie State University, St. George News
Ray Kuehne | Photo courtesy of Dixie State University, St. George News

ST. GEORGE – Federal authority over public lands in the West has a solid basis in both the Constitution and in subsequent Supreme Court decisions, presenter Ray Kuehne told an audience at a Dixie Forum discussion at Dixie State University Tuesday.

The debate over public lands has intensified since 2012 with the passage of the Transfer of Public Lands Act by the Utah Legislature.

The Act demanded that most federal land in Utah be transferred to the state, Kuehne said, even though the Legislature’s Office of Legislative Research and General Counsel advised that any attempt to enforce it had a high probability of being declared unconstitutional.

Despite that advice, the Legislature passed the act and the governor signed it. The legislation demanded the federal government hand over management of 31 million acres of public land by New Year’s Eve 2014.

In December 2015, the Utah State Commission on Stewardship of Public Lands voted to draft a legal complaint against the federal government preparing to sue over the issue at an estimated cost of nearly $14 million.


Read more: Utah commission votes to sue feds over public lands


While Supreme Court cases are often cited to support the transfer of public lands to the states, Kuehne said they are taken out of context and ignore the historical events that preceded and influenced the writing of the Constitution and its public land provisions.

“I’m showing you what is in the Constitution, and that is what the Supreme Court has always gone back to. In each of these cases, it says the federal government is like a proprietor, it can deal with that land as they wish.

Red Cliffs National Conservation Area, St. George, Utah, Aug. 29, 2015 | Photo by Julie Applegate, St. George News
Many Washington County residents live in close proximity to federally managed public lands as shown in this photo of the Red Cliffs National Conservation Area which is adjacent to Red Hills Parkway, St. George, Utah, Aug. 29, 2015 | Photo by Julie Applegate, St. George News

“That bothers people in the West, I understand that,” Kuehne said. “But I’m a Constitutionalist, and whether I like it or not, that is what the Founding Fathers did and said. And the only way to change that is to change the Constitution.”

Neither the Articles of Confederation nor the Constitution required Congress to transfer any public land directly to new states when they were established, Kuehne said.

While specific grants of land were made for state government and education purposes, Congress used its constitutional authority over the western land for the benefit of the entire nation.

For example, funds obtained by selling land to homesteaders were used to reduce the national debt, while granting land to war veterans reduced the need to pay them for their service.

Challenges to federal control of  land within a state have generally revolved around two claims, Kuehne said. It is thought that federal control violates the equal footing doctrine, also known as the equality of states doctrine. That thinking sugests that federal control undermines the sovereignty or equality of a state and that provisions of Article 4 of the Constitution only apply to land outside of established states. However, Kuehne said, both claims have been rejected by the federal courts.

Ivins City nestles against the Red Mountain Wilderness Area, an example of federally managed land in Washington County, Ivins, Utah, Feb. 13, 2015 | Photo by Julie Applegate, St. George News
Ivins City nestles against the Red Mountain Wilderness Area, an example of federally managed land in Washington County, Ivins, Utah, Feb. 13, 2015 | Photo by Julie Applegate, St. George News

“Disposal” of public lands

Washington County Commissioner Alan Gardner asked a question from the audience at the Dixie Forum about language in the Taylor Grazing Act of 1934. Gardner was appointed vice chair of the public lands steering committee of the National Association of Counties in 2015.


Read more: Gardner tapped for national public lands committee


“The first line of that Act says ‘to determine the proper use for it (the land) until final disposal,'” Gardner said.

The word  “disposal” is used frequently in documents pertaining to public land, Kuehne said, but doesn’t mean what people think it does.

“People assume it implies that ‘disposal’ means the government will dispose of all of that land,” Kuehne said. “That is not the meaning of the word ‘disposal’ in the language back in those days.

“If you turn again to the Supreme Court, it says that the government has the power to dispose of as it wishes or not to dispose,” Kuehne said. The word has another meaning as well: to align or make use of, “to dispose it to a use.”

“You ‘dispose’ your army, not by sending the army home; you ‘dispose’ your army by sending it up in battle formation to be used in a certain way. That’s another proper use of the word ‘dispose’ in that context.”

Constitutional misunderstandings

Three provisions of the Constitution are frequently used to support the transfer of public lands to the states, Kuehne said, however, a closer reading disproves the support.

The Bears Ears Buttes framed with summer wild flowers, Bears Ears Buttes, Date not given | Photo by Tim Peterson (Bears Ears Inter-Tribal Coalition), St. George News
The Bears Ears Buttes framed with summer wild flowers, Bears Ears Buttes, date not given | Photo by Tim Peterson (Bears Ears Inter-Tribal Coalition), St. George News

The Enclave Clause found in Article I of the Constitution is often cited as requiring prior state approval before federal agencies may control any land within a state, Kuehne said. However, the passage clearly states that its provisions apply only to congressional control over the District of Columbia and to all places purchased by the consent of the Legislature of the state for the erection of forts, magazines, arsenals, dockyards and other needful buildings.

The Property Clause found in Article IV of the Constitution was ignored by the Utah Legislature when it passed the Transfer of Public Lands Act, Kuehne said. It clearly states that “Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”

“The Supreme Court has consistently ruled that the terms ‘territory or other property’ refer to land that was ceded to the national government by the original 13 states; land subsequently obtained from foreign governments; and portions of such land designated by Congress as territories before new states were created from it; and all remaining public land within the borders of a new state not specifically granted to the state in a Congressional enabling act,” Kuehne said.

The Supremacy Clause found in Article VI of the Constitution reinforces the Property Clause, he said, by stating: “This Constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land, and the judges in every state shall be bound thereby.”

Kuehne attended the University of Utah and graduated with a bachelor’s degree in history. Kuehne also received a Fulbright Fellowship to study in Germany for one year, followed by a Woodrow Wilson Fellowship at the University of Virginia.

Upon retirement, Kuehne and his wife, Genie, moved to St. George. In his spare time, Kuehne writes articles about the constitutional origin and historical development of national public lands.

About Dixie Forum: A Window on the World lecture series

Dixie Forum is a weekly lecture series designed to introduce the St. George community and Dixie State students, faculty and staff to diverse ideas and personalities while widening their worldview via a 50-minute presentation.

This Tuesday’s forum will join in opening day of the Docutah International Documentary Film Festival’s filmmaker chats at noon in the Robert N. and Peggy Sears Art Museum Gallery of the Delores Doré Eccles Fine Arts Center on campus. 

Email: japplegate@stgnews.com

Twitter: @STGnews

Copyright St. George News, SaintGeorgeUtah.com LLC, 2016, all rights reserved.

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17 Comments

  • godisdead September 4, 2016 at 1:34 pm

    After listening to the presentation by Mr. Kuehne, I would expect anyone with common sense to give up chasing windmills with this issue. It’s always been about development and greed and not about the land. The state’s republicans and their cronies need to recognize that fossil fuel development, timber sales, welfare cattle ranching, and ATV abuse on the public’s land, will continue to be regulated by the feds, and not sold off to the highest bidder.

  • native born new mexican September 4, 2016 at 2:50 pm

    This man interprets the constitution according to his own liking. The founding fathers never intended for this country to be a dictatorship run by an international oligarchy. He quotes and quotes the supreme court. I have zero respect for the court and their corrupt politics. They also make the so called law say anything they want it to no matter how bizarre their interpretation might be. In the end law gets made, interpreted and enforced by violence. That is what dictatorships are about and that is why revolutions and civil wars happen – all the time. Talk is cheap and it does not really ever change anything. Those that run the federal government need to play respectfully and justly with the citizens of what are supposed to be sovereign states if they want to avoid the problems mentioned
    above.

    • Chris September 4, 2016 at 3:13 pm

      Your understanding of the Constitution, history, and the law is pathetic. Raymond Kuehne’s interpretations are backed up by court decisions and legal scholarship dating back 150 years and more. Your interpretations are backed up by nothing more than your demented delusions.

    • Bob September 4, 2016 at 5:22 pm

      The only thing worse than the feds owning the land would be having private interests or local mormons own it. i think native would like to see all the land sold off too the extraction industry or to development. then poor native could never go on the land or he’d be trespassing. its always a lose lose in native’s world

      • native born new mexican September 4, 2016 at 6:10 pm

        Bob Have you ever heard the word fascism? a simple explanation of it is that government controls private industry and a few private, wealthy individuals run the government. You think a free and independent government owns and runs our land? Not so. Do some research about what really goes on in the circles of power in our government. I want the land to be owned and used by the local people in a free market capitalist system with the emphasis on small and local. You want a fascist government (run by a few private individuals) to be in control of every thing and everyone. If you think you are avoiding the super rich owning everything by giving it all to the very government they own and run you are foolish. You might also research the word feudalism that is another version of what the super rich are using our government for. http://www.econlib.org/library/Enc/Fascism.html
        feu·dal·ism
        ˈfyo͞odlˌizəm/Submit
        nounhistorical
        the dominant social system in medieval Europe, in which the nobility held lands from the Crown in exchange for military service, and vassals were in turn tenants of the nobles, while the peasants (villeins or serfs) were obliged to live on their lord’s land and give him homage, labor, and a share of the produce, notionally in exchange for military protection.

        • Bob September 4, 2016 at 8:34 pm

          i get your point, but i’ve seen what these local mormons do when they get hold of tracts of land, and the feds end up being the lesser evil in about every case. Just look at what our local corrupt water works is always trying to do with our taxes and with projects and they are completely local. The same corrupt and wasteful/destructive bs happens when local yocals/and good ol’ boys get hold of land tracts. the feds are able to keep the local/state gov’t scumbags from messing with the land a lot of times, and that is almost always a good thing

        • godisdead September 4, 2016 at 10:07 pm

          Native born new mexican – you need to save your money and utilizing the free market system, but your own little island somewhere.
          We live in a country with well over 300 million people and the government we have, although far from perfect, is the best option for us.
          Your belief in local control this and free market that, simply means that the local powers with money, will control the surrounding countryside.
          I for one, would rather have the Fed’s keep control, leaving our lands open for the 300 million plus people to enjoy. You have no rational solution. Local control and free market capitalism would mean nothing more than raping and looting OUR lands for some interests to make a quick buck.

      • .... September 4, 2016 at 6:52 pm

        Bob maybe you could tell them about your government owned big pharma conspiracy theory and that would give them something to think about. and the same time make another one of you stupid anti Mormon whining comments

    • anybody home September 4, 2016 at 9:41 pm

      You are the one doing the interpreting to your own liking as if you’re smarter, better read, and more able than Mr. Kuehne to tell us what the Constitution says. It’s ludicrous that relatively uneducated people want to “school” everybody else, including people with advanced degrees. Give us a break.

      • native born new mexican September 5, 2016 at 8:28 am

        You have no idea how much education I or other people have anybody so be careful who you call “uneducated.” Education does not make a person smart or correct in their views. It only means they spent a lot of time in school. Other people were getting their education in the school of life and work. I don’t care how much education a person has. I care how wise they are and how well thought out their ideas are. If I need to survive in the north pole I will ask an Eskimo and not a college professor.

        • Chris September 5, 2016 at 10:25 am

          You are wrong. We do have an exact idea of how much education you have because of the ludicrous things you say in every post you make. That combined with the fact that you don’t tell us about your education is proof that you have very little, Mr. Mexican. People who get defensive about being called uneducated are always uneducated. You are so uneducated that you don’t realize it when you give yourself away.

          • native born new mexican September 5, 2016 at 11:50 am

            Are you a troll Chris? Shame on you! Do you have a problem with cultures that are different than yours? ( Mr. Mexican) No You don’t know anything about how much education I do or don’t have. Name calling is easy; making intelligent comments takes real effort. Why don’t you try some of that?

          • Bob September 5, 2016 at 12:25 pm

            my guess is 3rd or 4th grade. just enough to get learned to read real good

          • Bob September 6, 2016 at 12:48 am

            Mr Mexican… LOL

  • NotSoFast September 4, 2016 at 9:49 pm

    State rights vs. Federal control? What are you worried about? The EPA agency will moderate for our benefit. Right?

  • KarenS September 5, 2016 at 1:03 pm

    Excellent article, very well-written. It demonstrates in a nutshell how utterly indefensible the Utah Legislature was to commit $14 million taxpayer dollars on a fool’s errand. But with the death of Supreme Court Justice Scalia and the unknowns with the current presidential election, the state of Utah has not yet filed the frivolous lawsuit. Not that the legislators have saved the taxpayers money with all of the luxury hotels and meals that have been taken by the Louisiana law firm that the Utah Legislature has chosen to defend the case. Oh well.

    Now, if only the Bundy’s had studied the Constitution AND the Supreme Court decisions they would not be going to prison for their crimes in Oregon and Nevada. Their claims are based on the same lack of understanding. The trial in Oregon starts this week. Half have wisely taken plea deals, the others are toast, thanks to their own meticulous documentation of their many crimes.

  • beacon September 15, 2016 at 4:55 pm

    Mr. Kuehne handled those in the audience who did not agree with him graciously and with details. As our AG Sean Reyes said in his town hall held several weeks ago, there is really no law to back up the state’s desire to get land. Supreme Court Justice Scalia told him at one point that proponents had better have all their ducks in order because there’s no silver bullet, and if they lose this time, there may never be another chance. All the presentations I’ve attended on this subject point to the fact that it’s political not fact- or law-driven.

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