Editorial - Make a deal instead of suing over public lands

A new analysis from the University of Utah Law School’s Wallace Stegner Center affirms what so many others have said about the state’s effort to sue the federal government to take over its federal lands: "Utah’s claims … are doomed to failure."

That by itself is enough reason to abandon the fight, but the two authors take it a step further. "This may be the larger lesson — that the transfer movement does more harm than good to the federal-state relationship needed for effective land management."

Even Anthony Rampton, the assistant attorney general who is the state’s legal expert on suing for land, told state legislators in June that it would be a "tough case," tough enough that Rampton says the state should keep negotiations with the feds open, negotiations like Rep. Rob Bishop’s effort to settle multiple land disputes in eastern Utah in one bill.

...Utah’s case is akin to flying through the eye of a needle. For the state to succeed, the courts have to:

1) Buy the argument that the "enabling act" that allowed Utah to become a state is ambiguous in that it says in one place that Utah has relinquished rights and in another place that the federal government will sell land and give a share of the proceeds to the state.

2) Choose to give the state the benefit of that ambiguity and take the second statement as the right interpretation, and

3) Allow that argument, and the enabling act itself, to take precedent over the Article IV, Section 3, Clause 2 of the U.S. Constitution, That is the "property clause" that gives the federal government full authority to do as it sees fit with its property, and the courts have not flinched from that authority. 

READ ENTIRE EDITORIAL

The Editorial concludes by saying, "If Rep. Bishop fails in his effort to settle the land disputes the right way — through negotiated legislation involving all stakeholders — it likely will be because he couldn’t hold the county commissioners, many of whom have bought Rep. Ivory’s tenuous legal claims. If the Bishop process fails, a real opportunity will be lost in pursuit of a fake one."

You have to wonder if the Tribune editorial board has read the Kochan article in the BYU Law Review, which comes to the opposite position. 

Further, the Bishop proposal has a better chance of passage because of the education and pressure brought by Kent Ivory's effort.

However, Bishop's proposal is a threat to Ivory's efforts, i.e. if Bishop succeeds there will be less political support for Ivory's transfer efforts.

Finally, notice the approach The Tribune supports, where in their "let's make a deal" the feds stay in control of the entire process right up to the end.  In the Ivory approach, the lands would be transferred and then the state would go to local communities and stakeholders for comment.  The Tribune wants the feds in control of the process while Ivory's approach would put the state and locals in control.  Why does The Tribune so mistrust the people of Utah?

Both approaches though are better than the status quo.