Utah urged to sue federal government for control of public lands

Posted at 9:17 AM, Dec 09, 2015
and last updated 2015-12-09 23:56:27-05

SALT LAKE CITY -- A report prepared for a state commission over public lands has recommended that Utah's governor and attorney general consider suing the federal government for control of public lands within the state.

The report, prepared by lawyers hired by the Commission for the Stewardship of Public Lands, "recommends that the Commission and Legislature urge the Governor and the Attorney General of the State of Utah to consider instituting litigation against the United States of America under the Original Jurisdiction of the United States Supreme Court."

The report said the goal would be to gain control of federal lands, which comprise almost two-thirds of Utah's land. Early estimates provided by attorneys indicate a lawsuit would cost taxpayers around $14 million and take six months to file an action before the nation's top court.

The team of lawyers hired by the Utah Commission for the Stewardship of Public Lands presents its findings on Wednesday, Dec. 9. (Pic via Ben Winslow)

The team of lawyers hired by the Utah Commission for the Stewardship of Public Lands presents its findings on Wednesday, Dec. 9. (Pic via Ben Winslow)

The commission's lawyers acknowledged that litigation against the federal government would be "time consuming, expensive and never certain in outcome." It also pointed out that the federal government would "most likely vigorously oppose this effort."

Still, it identified three legal theories Utah could pursue:

  • The Equal Sovereignty Principle, that states be equal in footing within the federal system;
  • The Equal Footing Doctrine, a claim that Utah should have dominion over lands within its borders;
  • The Compact Theory, claiming historic evidence that the United States had a duty to dispose of public lands within Utah's borders.

Read the full report here:

The hearing got fairly contentious when Sen. Jim Dabakis, D-Salt Lake City, challenged the attorneys and whether their report was truly impartial as they claimed it would be.

"I think the vast majority of legal experts in the country would say that this is a 'Hail Mary' at best," he said.

Rep. Ken Ivory, R-West Jordan, called for a point of order and pointed out that the legal team was hired by a unanimous vote -- Dabakis included.

"The senator does not need lectures from the representative from the west side of the valley," Dabakis shot back. "My questions were relevant. They were valid."

The attorneys defended their work, saying they considered all legal sides.

"I give my clients objective advice," said John Howard. "I'm not here to press an ideology."

Sen. Scott Jenkins, R-Plain City, asked if there was any precedent for a state suing the federal government and winning. The lawyers replied: "No."

The legal team acknowledged that it was highly unlikely the U.S. Supreme Court would order the federal government to hand over the land to the state of Utah. However, they believed they do have a significant constitutional question, which would allow the state to bring a case.

"This is one of the greatest issues facing our state," Rep. Ivory said, urging his fellow lawmakers to support the case.

The commission voted 6-2 along party lines to support it.

The Utah Attorney General's Office, which represents the state in matters of litigation, would make the final decision on any lawsuit. Parker Douglas, the federal solicitor for the Utah Attorney General's Office, told FOX 13 he had just seen the report for the first time on Wednesday when the commission was presented with it.

"What we’re doing is reviewing information that was given to us by a legislative body," he said. "We welcome all information before we make reasoned, legal decisions on behalf of the state of Utah."