Utah’s HB-148 was introduced, passed and signed by Governor Gary Herbert in March of 2012. Though for the most part flying well below the radar in media and general interest, the “Public Lands Disposal” Movement set off by HB-148 is growing faster than a prairie wildfire. This is not your Granddaddy’s “Sagebrush Rebellion;” not by a long shot.
The brainchild and nearly single-handed effort initiated by State Representative Ken Ivory of Utah, HB-148-the Transfer of Public Lands Act (TPLA), is spreading through the western states faster than one can say, “Bureau of Land Management.”
The purpose of TPLA is very simple; it makes a fundamental demand of the federal government to complete the disposal and extinguishment of title of the United States territorial lands ceded to the states upon admission to the Union. It directs that process for Utah be completed by December 31, 2014. At its root it is simply a collection demand on an original obligation that has not been met by Congress and the feds since Utah was admitted to the Union in 1896, or any other western state, for that matter.
The Utah law and any other similar law, passed by western state legislatures obviates every other subsequent act by the Congress, Executive or Judicial branch issued. The “Sagebrush Rebellion” of previous generations sought to change the disposition and designation of federal lands, roads and access through such vehicles as the Federal Lands Policy Management Act of 1976 (FLPMA). Those effort undertaken after the FLPMA were largely unsuccessful primarily because they attacked the wrong problem and because the federal courts, under their doctrine of “stare decisis,” were not inclined to follow the Federal (Article IV, Section 3), State Constitutions or Enabling Acts of Congress. They just followed their previous, if erroneous, precedents instead of the rightful claims of the states.
However, the TPLA essentially makes such subsequent “law of the case” null and void by recognizing the original basis of federal territorial lands disposition under the Enabling Acts and State Constitutions in the Admission process. Nearly every state was admitted through the use of such Enabling Acts by Congress or through nearly identically worded Articles in their State Constitutions. Those Acts and Constitutions directed how the Federal Territorial Lands were to be conveyed instantaneously upon Admission and the establishment of each State Constitution.
In an excellent legal analysis by Donald J. Kochan, Professor of Law, Chapman University School of law in Orange, California, there is little doubt about how the issue should be decided. However, given the decades-long dysfunction of the federal courts and government, as Professor Kochan points out, it is far from a “slam-dunk” that the courts will rule correctly under the law. If they do not rule correctly, that does not preclude any state from exercising their powers under the 10th Amendment and simply Nullifying or Interposing between the Feds and the land in each state. It also can leave no doubt as to the validity of Nullification and Interposition, when the federal government has so obviously and completely failed in its duty to adhere and “faithfully follow” the original charter, or even pretend to.
Nullification and Interposition will be the next-to-last due process mechanism to protect the People of the State and the State interest in insuring proper disposal of what are rightfully State Lands under the law.
Anyone that puts up a true map of the western states plainly sees not the familiar shapes of the western states but a jumble of MIcronesian-like archipelagos surrounded by vast oceans of federal lands that surround them. For more than a century, this “management” practice of the federal government has never allowed the western states to be on “equal footing” with all other states east of the Rockies. It makes them far from equal partners in their admission to the Union. It is a fundamental unfairness that severely restricts those states’ ability to have economies that allow them to fund their schools, build and maintain their own roads, bridges and highways and in general have the standard of living of the states east of the Rocky mountains. The fact that it is also unlawful on the part of the Feds compounds the unfairness many times.
Representative Ivory has started the American Lands Council organization and website which explains the whys and wherefores of this movement and provides the background and education.
It should be particularly galling and indeed repugnant to every American of all states, and particularly to those of western states, how the western states have been treated for more than a century. Even the old Union of Soviet Socialists Republics (USSR) was more respectful of individual states lands when it went through its breakup. The current Russian Federation has far greater local autonomy of the lands in the make-up of the various states/republics/oblasts/krais than do the western states of the American Republic. The western states are treated more as federal plantations and fiefdoms that are allowed little to no control of the lands, flora and fauna within their borders.
After more than a century isn’t it time the federal government lived up to its obligations and the western states finally became sovereign to the maximum extent directed by the united States vs the united States government? One would think that’s only fair and just after more than a century has elapsed.
