Utah likely has “one shot” at winning a “monumental” federal court case giving the state hundreds of thousands of acres of now-federally owned land, Attorney General Sean Reyes told a new legislative committee Wednesday morning.
And he and his staff are carefully going about preparing that case, which won’t be filed for at least six months, and could be a whole year away.
The Legislature has appropriated $2 million to pay for expert witnesses and possibly outside legal work for such a case, and members of the newly-formed Commission for the Stewardship of Public Lands clearly believe some kind of litigation will be coming.
The commission, which is really a group of eight House and Senate members, met for the first time Wednesday.
Over five years members will study the myriad of issues surrounding Utah’s attempt to gain control of a lot of federal land now managed by various agencies, like the Bureau of Land Management (BLM).
“Litigation is going to be part of this” effort, said Rep. Keven Stratton, R-Orem, who is the House chair of the commission.
But it likely won’t be the end all, said Reyes, who added that litigation may well force other groups, especially Congress, to act to finally settle the public lands issue in the West – where states have been waiting since they entered the Union to finally get control of promised federal lands.
In a showing of very strange bedfellows, both Sen. Jim Dabakis, D-Salt Lake, and Rep. Mike Noel, R-Kanab, said they want Reyes to quickly file a direct appeal to the U.S. Supreme Court.
Dabakis believes Utah will lose such a court case, and then legislative compromises can be made.
Noel believes Utah will win such a challenge, and then Congress, Utah and other western public land states can begin working on a sensible, workable plan to turn control of such lands over to state management.
A direct appeal to the U.S. Supreme Court is one route, said Reyes, but he added rarely does the high court take such an appeal (the court would have to hire a special counsel to develop facts on the case; usually the high court just takes appeals from trial and appellate courts, where the facts are already recorded).
But there are other routes as well, said Reyes, such as the traditional route where Utah, hopefully along with other states and interested parties, would file a case in a local federal court.
Ultimately, the high court would have to rule in that route, too; but it would likely take years of litigation to get the case before the Supreme Court.
Several times during Wednesday’s hearing, various members and representatives of Utah’s congressional delegation, called for bipartisan efforts.
Arriving at the best use of public lands – with the states having their proper control – is really “not a partisan issue,” said Stratton.
But that statement had barely come out of his mouth before various members of the commission – Republicans and Democrats – showed that it is partisan.
When Republicans hinted that Democratic President Barack Obama could soon greatly expand the Canyonlands National Park by making surrounding lands a national monument under the Antiquities Act, Dabakis gave a history lesson on how former President Teddy Roosevelt had to protect the Grand Canyon via the act before Congress would make it a national park.
And several Republicans said they hoped to take control of the U.S. Senate in the 2014 elections, and then they could work with the GOP-controlled U.S. House to move the public lands agenda forward.
Sen. Scott Jenkins, R-Plain City, said the federal government promised to turn federal lands over to the state way back in 1896.
“They signed a contract with us. Now they thumb their noses at us. We just have to sue,” said Jenkins.
But Reyes urged caution – and time for his office, along with the GOP governor and GOP-controlled Legislature – to form up the best possible case, and a legal strategy with the best chance of success.
Reyes suggested, and Stratton said it is already underway, that the commission co-chairs form a subcommittee, or working group, that will work with his office in investigating and drafting the best legal case.
Such a “working group” could at times meet in public, but more often it would meet in private – as GRAMA allows when discussing legal strategy.
Noel said it is vital that such a working group keep the legal strategy secret.
It is unclear if one of the two Democrats on the commission, Dabakis and Rep. Joel Briscoe, D-Salt Lake, would be on that “secret” legal working group, or if it will be made up of just GOP members.
Dabakis has already publicly called for Obama to use the AA to expand Canyonlands National Park.
Reyes said under the previous attorney general (the disgraced, and resigned, John Swallow), the office has been plugging along in investigating a lawsuit, and whether one should even filed.
While it is likely Utah officials would take the federal lands if they were offered, Reyes said part of his office’s evaluation is what it would cost to take over control of such a vast area of land and effectively manage it.
“We don’t understand enough now,” said Reyes. “We are looking at expert witnesses to educate us.”
His office will write up a comprehensive report – he can’t yet now give a finish date – and will share that with the commission, said Reyes.
There will be a clear understanding of what it will cost the state to sue the federal government, he added, with what the potential outcomes could be.
One route would be to sue the feds with several other states – which would reduce Utah’s cost.
Another would be to take the “tobacco settlement” approach of the 1990s – where states hired a huge, outside private law firm to sue on a contingency basis, the lawyers only getting paid out of settlement monies.
“We have one shot” in the courts, said Reyes. “If we take it and miss, that could curtail, or even grind to a halt, other important efforts” in getting some federal land transferred to state control.
Commission staff attorney Cathy Dupont said it is important to remember that the commission is not to look at federal lands that are national parks, monuments, designated wilderness and Indian tribal lands.
That leaves mainly national forests and BLM land.
Stratton said no one suggests that all federal lands, if given to the state, be sold into private use.
“We are a public lands state today, and we will always be.”
The question is who manages the public lands – the federal government or state and county governments.
Tony Rampton, the new head of the public lands division within the AG’s office, said Utah officials can’t afford another “failure” like the Sagebrush Rebellion of the late 1970s and early 1980s.
States went off half cocked back then, and in the end groups that should have been with the rebellion, like farmers, ranchers and recreationalists, ended up against the political and legal effort of states to get control of federal lands.
Public education will be key this time around, said Reyes, Rampton and several commission members.
And any political and legal strategy must include such special interest groups, or the overall effort may fail.
