In January of this year, the Federalist Society (an organization of 40,000 constitutionally-focussed lawyers, scholars and others throughout the nation) commissioned a thorough legal analysis of Utah's HB148 - The Transfer of Public Lands Act.  Dr. Donald J. Kochan produced a extensive White Paper explaining the legal legitimacy of this effort and distinguishing it from all prior movements related to the public lands. 

The same tired arguments against honoring to western states the same statehood promise to transfer the public lands that Congress kept with Hawaii and all states east of Colorado can be readily refuted ... if we know the simple facts! 

Over the next few weeks, I will be covering a few of the main points in this White Paper, and hope that you will take the time to look over both the original White Paper, along with the brief  Executive Summary.  

Summary 

Let's begin with a simple summary of the White Paper that covers some basic, essential points. 

• "The Utah Transfer of Public Lands Act ("TPLA") is distinct from prior state efforts to resolve the 
  issue of federal control over more than 50% of all lands in the West."
  In other words, this is NOT just another "Sagebrush Rebellion" destined for failure.
•  "The U.S. Supreme Court has repeatedly recognized that the contracts of statehood, like the Utah Enabling Act ("UEA"), are "solemn bilateral compacts" between sovereigns that are serious and enforceable."  Even as late as 2009, the U.S. Supreme Court unanimously declared that Congress does not have the authority to unilaterally change the rights and obligations of statehood enabling act compacts, particularly where  "virtually all of the State's public lands are at stake." (Hawaii vs. Office of Hawaiian Affairs, 2009)
• "Read as a whole, the plain language of the UEA reflects not just a duty on the part of Utah to give clean title to the federal government (i.e. "forever disclaim all right and title") but also a duty on the part of the federal government to timely dispose of the public lands ("until the title thereto shall have been extinguished by the United States)..."  It is vital that legal documents be understood in their full context, taking into account the bargained for rights and obligations of both parties. 
•  "...otherwise, Utah would never realize its benefit of its bargain in this 'solemn agreement' - a part of the proceeds of sale directly to fund education and the ability to tax the lands to pay for essential public services." States relied upon this obligation of the federal government (which pre-dates the founding of our nation) to dispose of the public lands in a timely manner and for the highest amount possible to fund education in the states and so they could begin to generate state and local taxes and other revenues from the lands. 

Please take the time to study the following links, and share them with your elected leaders, your friends, and other community leaders.  Please request an analysis of this important legal study from your city, county, state or other attorneys or legal advisors.  Please let us know if they come up with any valid arguments that may refute any portion of the White Paper.  We haven't heard any yet ...

Federalist Society White Paper

Executive Summary of Federalist Society White Paper

Sincerely, 

Ken Ivory

ALC President