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.
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.
“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.
“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.
“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.”
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 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.
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