Professor Kochan goes on to add that Section 9 of the UEA is also critical to understanding the reasons why states were willing to temporarily give the federal government title to those unappropriated lands in the first place:

"Thus, the State had a selfish interest in wanting the federal government to have certain title because it increased the state's own gains under the agreement. Consider Section 9 of the UEA, which provides:

"SEC. 9. That five per centum of the proceeds of the sales of public lands lying within said State, which shall be sold by the United States subsequent to the admission of said State into the Union, after deducting all the expenses incident to the same, shall be paid to the said State, to be used as a permanent fund, the interest of which only shall be expended for the support of the common schools within said State.

"First, by its language Section 9 entitles the State to proceeds from disposals. This means that the State is invested in and relying upon the existence of disposal, which, in consideration for this percentage of the proceeds, the State agreed to help facilitate by disclaiming rights to the unappropriated lands so as to give the seller in the disposal market (the federal government) the valuable commodity of certain title attached to the property disposed of.

"Basic rules of construction require harmonization of Section 3 with Section 9.  By reading the two together, one can see that they generate a "duty to dispose." If the federal government could retain the property, the State would never get any benefit from Section 9. It is impracticable to believe that the State intended to agree to disclaim rights in return for a cut of the sales of those lands (and in anticipation therefore that actual sales would occur so that there was a cut to be had) yet intended no corresponding obligation that the federal government actually dispose of such lands.

"This interpretation is further strengthened by the words in Section 9 proclaiming that the lands ceded in Section 3 "shall be sold."  This commanding language indicates that disposal was not only anticipated but demanded and expected as a condition of the agreement.  This mandatory language removes from the federal government the choice to never dispose and instead retain such lands as were ceded in the previous part of the UEA . The federal retention of these lands deprives the state of revenue which would come from, inter alia, (1) the State's receipt of a guaranteed percentage of the proceeds from disposal sales; and (2) the State's ability to tax property after it is disposed into private hands, whereas while the federal government retains those lands they are exempt from taxation.

"The principle argument in favor of the TPLA is that it calls for the disposal of lands that by the very nature of their acquisition came with an encumbrance attached - a compact and promise made between two sovereigns where the federal government committed itself to disposal and promised that it would exercise its disposal obligations in a manner (and with an understanding that respects the expectation by the State that the federal government would dispose of such lands) so that both a percentage of the proceeds from the sales would be shared with the State and the State thereafter would have the capacity to tax such lands when disposed into private hands. Utah's claim seems more than reasonable in light of these promises in Section 9."

Too many people are unaware of the facts surrounding our public lands.  It is important that we not believe soundbites, but rather be willing to study the facts in this case.  For this reason, we continue to  request that you send the  White Paper, commissioned by the Federalist Society, to all of your county, city and state attorneys, legal advisors and government affairs personnel, as well as your elected officials and ask for their review, commentary and feedback. 

Federalist Society White Paper

Executive Summary of Federalist Society White Paper