Download An Analysis of a Transfer of Federal Lands to the State of Utah

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B A C K G R O UN D
Utah is a state rich in land resources, most of which
are owned and managed by federal agencies. Like
many other western states, land ownership in Utah
is characterized by a high level of federally controlled land intermingled with state and privately
owned lands (Figure 1.1). The high level of federal
land ownership, combined with concerns about
federal management of Utah’s lands, culminated in
the passage of H.B. 148 calling for the transfer of
31.2 million acres of public land to the state.
Figure 1.1
Land Ownership in Utah
5%
21%
Federal
State
10%
Private
64%
Tribal
Of Utah’s 54.3 million acres, federal agencies manage 64.5 percent, or 35 million acres. Most of this
land is administered by two federal agencies: the Source: BEBR analysis of data from State of Utah, SGID.
Bureau of Land Management and the U.S. Forest
Service. Other federal agencies with much smaller shares include the National Park Service, the
Department of Defense, the U.S. Fish and Wildlife Service, the Department of Energy and the
Bureau of Reclamation. Twenty-one percent of lands are in private ownership (11.4 million
acres), which includes county and municipal land. Tribal lands account for 4.5 percent of the
total. Tribal trust lands are cooperatively managed by the Bureau of Indian Affairs and the Native American Indian tribes that own the land (Banner 2009). Utah state government agencies
own and manage the remaining 10 percent of the land in the state (5.4 million acres) (Table 1.1
and Figure 1.2).
Most of Utah’s lands are trust lands managed by the State of Utah School and Institutional Trust
Lands Administration (SITLA). Other state agencies managing Utah lands include the Utah Department of Natural Resources (Division of
Table 1.1
Forestry, Fire and State Lands, Division of
Utah Land Ownership, by Agency
Wildlife Resources and Division of State
Parks and Recreation), and the Utah DeEntity
Acres Share
Federal
35,019,955 64.5%
partment of Transportation (Figure 1.2).
Bureau of Land Management
22,803,707
Forest Service
8,175,253
National Park Service
2,096,702
Department of Defense
1,812,561
U.S. Fish and Wildlife Service
112,696
All Other Federal
19,001
State
5,419,281
School and Institutional Trust Lands
3,400,511
Department of Natural Resources1
2,015,984
Utah Department of Transportation
2,150
Other State
636
Private, County and Municipal
11,428,135
Tribal
2,448,616
Grand Total
54,315,952
42.0%
15.1%
3.9%
3.3%
0.02%
.003%
10.0%
6.3%
3.7%
.004%
.001%
21.0%
4.5%
100%
Utah’s land ownership legacy is a result of
federal land policies enacted shortly after
the Revolutionary War, which continued as
the government acquired, disposed of, and
eventually retained its lands.
An overview of federal lands history explains the evolution of Utah’s current land
ownership patterns and provides context
for passage of H.B. 148.
1. Includes acres managed by Forestry, Fire and State Lands,
Division of Wildlife Resources, and Division of State Parks and
Recreation.
Source: BEBR analysis of data from State of Utah, SGID.
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AN ANALYSIS OF A TRANSFER OF FEDERAL LANDS TO THE STATE OF UTAH
Figure 1.2
Land Ownership of Utah, by Agency
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1 – Background
The federal government currently owns and manages more than 620 million acres of land in the
United States, roughly one-third of the 1.8 billion acres it has acquired since the Revolutionary
War. Most of these lands are heavily concentrated in the West (including Alaska), and most are
managed by four federal agencies—the Bureau of Land Management, U.S. Fish and Wildlife
Service, the National Park Service and the U.S. Forest Service. The remaining acres are managed
by other federal agencies, most notably, the Department of Defense.
While the transfer of 1.3 billion acres to private and state ownership played an essential role in
the settlement and development of the fledgling Republic, the present-day policy of federal land
retention continues to be controversial. The history of land acquisitions, federal land disposal
and land retention policies in the U.S. provides an important context for current affairs relating
to the demands by some western states for transfer of federal lands to state ownership.
1.1 FEDERAL LAND A CQUI SI TI ON AND DI SPOSAL
For much of America’s history, federal land policies have been contentious; however, they were
crucial in establishing a strong, centralized federal government after the Revolutionary War and
in the settlement of vast, new areas of largely unsettled lands. Federal land ownership began with
the cession of “western” lands claimed by several of the original colonies to the federal government. From 1781 to 1802, ownership of 237 million acres between the Appalachian Mountains
and the Mississippi River was transferred to the newly formed Republic. Under this cession,
these lands became the property of the
federal government (Gates 1968). The
Table 1.2
public domain grew with subsequent
Acquisition of the Public Domain
acquisitions via purchases and treaties,
Share of Total
beginning with the Louisiana Purchase Acquisition
Date
Area1
U.S. Land2
in 1803 and ending with the Alaska State Cessions
1781–1802
236,825,600
10.4%
1803
529,911,680
23.3%
purchase in 1867—eventually culmi- Louisiana Purchase
3
1782–1817
29,601,920
1.3%
nating in a U.S. land base totaling Red River Basin
Cession from Spain
1819
46,144,640
2.0%
roughly 2.27 billion acres (Gorte and Oregon Compromise
1846
183,386,240
8.1%
Alexander 2007). 1 Table 1.2 shows the Mexican Cession
1848
338,680,960
14.9%
Purchase from Texas
1850
78,9269,720
3.5%
acquisition of the public domain.
Gadsen Purchase
Alaska Purchase
Total Public Domain
1853
1867
18,988,800
378,242,560
1,840,709,120
.8%
16.7%
81.0%
The states’ cession of their lands was
an important resource for the federal 1. Includes land and water acres.
Represents the percentage of current total U.S. land acreage, which is
government, providing a mechanism to 2.2,271,343,360.
This excludes U.S. territories and possessions.
resolve the country’s massive Revolu- 3. Treaties with Great Britain.
tionary War debts, address the ongoing Source: U.S. Department of the Interior, Bureau of Land Management,
Public Land Statistics, 2012, www.blm.gov/public_land_statistics/
financial needs of the government, and pls12/pls12.pdf.
encourage settlement in the new lands. 2
The mechanism under which this land distribution would occur was defined in the Land
nance of 1785. Questions about governance of the lands, including the requirements for statehood, were laid out in the Northwest Ordinance of 1787 (Culp, et al. 2005).
1 Cessions of land from the original states and other lands acquired via treaty or purchase after 1781 totaled 1.8 billion acres. The remaining 429.6 million acres belonged to, or were retained by, the original states (BLM 2013).
2 According to the Bureau of Public Debt, by 1791 debts incurred during the American Revolutionary War totaled
$75,463,476, roughly equivalent to $2.25 billion in 2013.
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AN ANALYSIS OF A TRANSFER OF FEDERAL LANDS TO THE STATE OF UTAH
The Land Ordinance of 1785 authorized the public land rectangular survey system that became
the foundation by which land was surveyed and sold by the federal government. The General
Land Office, predecessor to the modern-day Bureau of Land Management, was created to facilitate the surveying and disposal of the federal lands. The Northwest Ordinance of 1787 created a
system of territorial governments and established the process for transitioning territories into
new states.
In contrast to many other sovereign governments, the U.S. generally disposed of lands at nominal prices and encouraged private ownership, enacting numerous laws to sell, grant, or otherwise
transfer federal lands to encourage and accelerate settlement of the West. Examples include the
Pre-Emption Act of 1841, the Homestead Acts of 1862 and the Desert Lands Entry Act of
1877. These acts offered settlers large tracts of land (ranging from 160- to 640-acre parcels) at
reasonable prices (ranging from $1.25 to $2.00 minimum per acre). To facilitate land disposal,
Congress established the General Land Office in 1812, whose primary purpose was transferring
lands into private ownership. Apart from the mass sale of land, Congress also granted lands to
the railroads in the 1870s, providing incentives to establish a national transportation system
(Gates 1968).
Through these acts, and other federal land policies encouraging settlement and development of
the public domain, 816 million acres have been transferred to private ownership (homesteaders,
railroads, veterans, etc.) since 1781. Most of the land transfers occurred prior to 1940. Apart
from grants and sales, 471 million acres have been conveyed to the states, primarily in the form
of trust land grants.
Providing educational opportunities for its citizenry was an important objective of the federal
government. Lacking financial resources, Congress turned to its land resources. When new states
entered the Union, they received one section in each township for public education as well as
lands (to be selected by the state) for other public institutions. These land grants were known as
“trust lands” and were to be used for the benefit of the beneficiary for which they were granted.
Provisions for the lands were included in the enabling acts of the new states. As land was surveyed, these reserved sections were granted to the new state without further action (Walker
2006).
As development moved westward, the size of the grants increased significantly, first to two sections and ultimately to four sections of every township. The reasoning behind the increasingly
large grants of land was a practical one. Land in the west was steeper, more arid and less likely to
support agriculture. Congress recognized that western states would require a larger amount of
land to produce the necessary resources to support public schools. In addition, the original reservation grants for common schools were accompanied by increasingly generous “block” grants
for the support of other public institutions. Beyond these additional grants, Congress allowed
states to select in lieu lands from elsewhere in the public domain when their reserved lands in a
given township were already occupied by homesteaders or dedicated to other purposes (Culp, et
al. 2005).
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1 – Background
1 .2 F E D E RA L L A N D WI TH D RA WA L S A N D R E TE N TI O N
Coincident with federal policies during the mid- to late 1800s encouraging the settlement of the
West through land disposal, were policies that provided for land withdrawals—the removal of
lands from the disposal process to be retained for particular public purposes. For example, the
Land Ordinance of 1785 mentioned above reserved sections of each township for the benefit of
public schools in newly formed states. Other withdrawals were for specific public purposes such
as military fortifications and mineral reservations. By the end of the 19th century, however, lands
were withdrawn for much different reasons.
By the late 1800s there were growing concerns in Congress that rapid development in the West
threatened some of the nation’s scenic treasures and depleted resources that may be needed in
the future. These concerns culminated in new laws focused on land preservation and conservation rather than land disposal. The establishment of Yellowstone National Park in 1872 was a
first step this process, eventually leading to the establishment of the National Park System. In
1891 Congress passed the General Land Reform Act, which created the forest preserves, removing those lands from private entry. This act ultimately led to the creation of the National Forest
System (Gorte and Alexander 2007). By the end of 1909, a total of 194.5 million acres were in
forest reserves. In 1903, President Theodore Roosevelt began withdrawing lands to protect wildlife habitats, which led to the National Wildlife Refuge System. 3
From 1891 onward, emphasis subtly shifted from land disposal to retention and management of
the remaining federal lands. Greater emphasis was also placed on implementing policies focused
on scientific approaches to resource conservation and preservation. By the 1930s, it was generally accepted that the federal government would reserve and manage millions of acres in the public
domain. Under the auspices of the newly formed U.S. Department of the Interior’s Grazing Service, the 1934 Taylor Grazing Act strengthened the move in this direction. This act, intended to
remedy the deterioration of federal lands due to overgrazing and drought, established grazing
districts on public rangelands, and provided “direct authority for federal management of lands
which previously were freely available for transient grazing, and reflected the significant decline
in homestead entries”(Gorte and Alexander 2007). 4
The shift toward an explicit policy of retention was solidified in 1964 with the establishment of
the bipartisan Public Land Law Review Commission (PLLRC) and enactment of the Classification and Multiple Use Act of 1964. PLLRC was tasked with reviewing existing public land laws
and regulations and the policies and practices of federal land management agencies. The first
recommendation from the PLLRC in its 1970 report to the President and U.S. Congress was
that the remaining federal lands, in general, should be retained in federal ownership. Specifically
it recommended that
the policy of large-scale disposal of public lands reflected by the majority of statutes in force today be revised and that future disposal be of only those lands that
will achieve maximum benefit for the general public in non-Federal ownership,
while retaining in Federal ownership those whose values must be preserved so
that they may be used and enjoyed by all Americans (PLLRC 1970).
Although the first wildlife refuge was established by executive order in 1903, it was not until 1966 that all the refuges in the U.S. were collected into the National Wildlife Refuge System.
4 The U.S. Grazing Service was formally merged with the General Land Office in 1946 to form the Bureau of Land
Management.
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AN ANALYSIS OF A TRANSFER OF FEDERAL LANDS TO THE STATE OF UTAH
Coincident to the research efforts of the PLLRC, the Bureau of Land Management (BLM) began
classifying lands under its control for retention, disposal, and multiple-use values as directed under the Multiple Use Act. By the time PLLRC released its report, BLM had classified more than
90 percent of the remaining public lands under its jurisdiction for retention.
1.2.1 Era of Expanding Regulation
The 1960s and 1970s marked a transition into the modern era of federal land management with
the enactment of federal statutes protecting air, water, habitat and wildlife resources and establishing administrative protocols for managing federal lands. These changes in land management
were driven by federal laws centered on three broad topics: (1) environmental protection
(amendments to existing laws), (2) federal land management administrative procedures, and (3)
land, habitat and wildlife resource protection.
By the middle of the 20th century some ardent conservationists were demanding that parts of
the public domain be permanently maintained as wilderness. They argued for prohibiting timber
cutting, oil and gas drilling and other economic activities in these areas. In response to these demands, Congress passed the Wilderness Act of 1964, which set aside millions of acres of wilderness with very restrictive rules on their use. Many in the western states bitterly criticized this law,
insisting that resource development was integral to their economic prosperity. Other resource
protections were provided for in the Clean Air Act of 1970, the National Environmental Protection Act of 1970, the Clean Water Act of 1972 and the Endangered Species Act of 1973. Many of
these laws continue to fuel contentious debates involving land users and federal land managers.
The enactment of the Federal Land Policy and Management Act of 1976 (FLPMA) codified the
policy of federal land retention over disposal (except in specific cases), essentially ending the era
of federal land disposal in the United States. With FLPMA, Congress expressly declared that the
federal government would retain ownership of the public lands unless the Secretary of the Interior determines that the disposal of particular parcels serves the national interest. In addition to
formalizing the policy of land retention, FLPMA also declared that public lands managed by the
BLM were to be managed for multiple uses and values, and repealed almost 2,000 statutes addressing land disposal policies enacted in earlier decades (Skillen 2009).
The end of the land disposal era left most of the western United States under federal ownership.
In 2010, 555 million acres or roughly 88 percent of remaining federal land was contained in the
11 western states plus Alaska. This high concentration of federal lands in the West, combined
with policies outlined in FLPMA, were significant factors in the “Sagebrush Rebellion,” a campaign by many westerners beginning in 1978 to assert title to federal lands or force their divestiture.
With the passage of FLPMA, these states faced a future with a substantial and permanent federal
presence with little influence as to how those lands would be used. The Sagebrush Rebellion was
a reaction to this environment, taking the form of state and local legislation, court challenges,
federal administrative changes and efforts at federal legislation. While some of these efforts
gained traction in Congress and with the Reagan administration, eventually they all proved unsuccessful. Since 1978, numerous bills have been introduced in Congress aimed at reducing federal land ownership through either land transfers or by capping federal land acquisitions. To
date, none have been successful.
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1 – Background
1.3 LAND OWNERSHIP IN UTAH
The formal transfer of federal lands to private ownership in Utah began in 1869 with the establishment of the first General Land Office in Salt Lake City. 5 By the time the office opened, the
Utah Territory was well established by members of the Church of Jesus Christ of Latter-day
Saints (the Church) who settled in the area in 1847 after fleeing religious persecution in Illinois.
The territorial government established by the Church governed land ownership in the Utah Territory (May 1987). The early citizens of Utah were not permitted the benefits of land disposal
laws due to disagreements between Church doctrine, laws of the United States, and the territorial
legislature, which generated church-state conflicts. These conflicts delayed the process of land
transfer to private citizens. For example, the PreempFigure 1.3
tion Act of 1830 (which allowed settlers to purchase
Township Grid
up to 160 acres of land for $1.25 per acre) and the
Homestead Act of 1862 (which granted 260 acres to
those willing to settle the “American Frontier”) did
not become applicable in the Utah Territory until
January 1869, when the Land Office opened (Banner,
et al. 2009).
With the opening of the General Land Office, Utah
lands were integrated into the national land system by
extending the rights of preemption, homestead and
purchase to Utah inhabitants (State of Utah 2014). 6
Utah’s trust lands were granted under its Enabling
Act of 1894. 7 By the time Utah was admitted to the
Union, Congress had increased the grant allocation to
four township sections—2, 16, 32 and 36 (Figure 1.3). Source: State of Utah, SGID.
While the rationale for scattering land grants was a practical one, it created a disjointed checkerboard pattern of 640-acre, noncontiguous, isolated parcels bordered by federally owned lands.
Utah trust land grants for the support of public schools totaled 5.9 million acres. In addition,
Utah received “quantity” or “floating” grants totaling 1.6 million acres. In total, Utah’s original
trust land grant was about 7.5 million acres, or roughly 14 percent of the state’s surface lands. 8
All land in the Utah Territory became part of the public domain when the United States signed the Treaty of Guadalupe Hildalgo in February 1848. This land came into the possession of the United States government with an undisputed title. At that time no private rights had been established.
6 The Preemption Act of 1842 gave settlers the first right to purchase 160 acres of land they had already homesteaded, and 21 months to make payments. The Homestead Act of 1862 evolved from preemption. This act provided
free grants of public lands to any person who was a citizen of the United States and over 21 or the head of a household.
7 After several unsuccessful attempts at statehood, Utah was admitted to the Union in 1896 under an 1894 Enabling
Act (Matheson and Becker 1988).
8 Because of its early settlement, many of the township sections had already been sold or transferred to private ownership. The Utah Enabling Act made provisions for this by specifying that if any of the township sections had already been disposed of by Congress, the state would be entitled to other equivalent lands. These lands have become
known as ‘in-lieu” lands. Utah did not complete its in-lieu selections until after 1985 (Harmer 1990).
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AN ANALYSIS OF A TRANSFER OF FEDERAL LANDS TO THE STATE OF UTAH
At the point government policy shifted to land retention, Utah was still a very young state and its
lands, outside of the urban areas, were largely unclaimed. 9 Consequently, a large share of Utah’s
lands were retained by federal agencies—primarily the Bureau of Land Management, National
Park Service and the U.S. Forest Service.
The present-day policy of federal land retention has been, and continues to be, controversial. It
is within this context that Utah passed legislation in 2012 calling for the transfer of 31.2 million
acres of federal lands to the state of Utah. H.B. 148, which enacted the Transfer of Public Lands
Act (Utah Code Ann. 63L-6-101 to 104), “requires the United States to extinguish title to public
lands and transfer title to those public lands to the state on or before December 31, 2014.”
“Public lands” are defined in the legislation as all federally owned lands in the state except the following: the national parks; all of the national monuments except Grand Staircase–Escalante,
which is included in the transfer; the Golden Spike National Historic Site; designated Wilderness
Areas; military lands; “real property or tangible personal property owned by the United States if
the property is within the boundaries of a municipality”; and Indian tribal lands held in trust by
the United States. 10 Figure 1.4 shows the extent of the lands to be transferred.
9 When federal lands were allocated as school trust lands, the urban areas of Utah were largely settled and the relatively few acres of urban trust land were quickly sold. The result is that very few acres in the urban counties are trust
land acres (Hedden and Bigler 2002).
10 See Appendix H for the complete text of H.B. 148.
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1 – Background
Figure 1.4
Federal Lands Called for in the Transfer of Public Lands Act
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AN ANALYSIS OF A TRANSFER OF FEDERAL LANDS TO THE STATE OF UTAH
REFERENCES
Banner, Roger E., Ben D. Baldwin, and Ellie I. Leydsman McGinty. 2009. “Rangeland
Resources of Utah.” Utah State University Cooperative Extension and the Utah Public
Lands Policy Coordination Office.
Culp, Peter W., Diane B. Conradi and Cynthia C. Tuell. 2005. “Trust Lands in the American
West: A Legal Overview and Policy Assessment.” The Lincoln Institute and the Sonoran
Institute. www.lincolninst.edu.
Gates, Paul W. “History of Public Land Law Development.” Public Land Law Review
Commission. Washington D.C., November 1968.
Gorte, Ross W. and Christina Alexander. Federal Land Ownership: Constitutional Authority and the
History of Acquisition, Disposal, and Retention. Congressional Research Service, December 3,
2007. digital.library.unt.edu/ark:/67531/metacrs1009/.
Harmer, Matthew J. 1990. “Utah’s School Trust Lands: A Century of Unrealized Expectation.”
BYU. Pub L. 453 (1990). digitalcommons.law.byu/edu/jpl/vol4/iss2/8.
Hedden, Bill and Craig Bigler. 2002. “School Trust Lands in Utah.” www.grandcanyontrust.org/
documents/ut_schoolTrustLands.pdf.
Matheson, Scott and Ralph E. Becker. 1988. “Improving Public Land Management Through
Land Exchange: Opportunities and Pitfalls of the Utah Experience.” Rocky Mountain
Mineral Law Institute 4.02[1]
May, Dean L. 1987. Utah: A People’s History. University of Utah Press.
Public Land Law Review Commission (PLLRC). 1970 “One-Third of the Nation’s Land: A
Report to the President and to the Congress.” Washington D.C.
Walker, Christopher. 2006. “The History of School Trust Lands in Nevada: The No Child Left
Behind Act of 1864.” scholars.law.unlv.edu/nlj/vol7/iss1/5/.
Skillen, James R. 2009. The Nation’s Largest Landlord: The Bureau of Land Management in the American
West. University Press of Kansas.
State of Utah, Division of Archives and Records. 2014. “Original Land Titles in Utah Territory.”
archives.utah.gov/research/guides/land-original-title.htm.
U.S. Department of the Interior, Bureau of Land Management. Public Land Statistics, 2013.
www.blm.gov/public_land_statistics/.
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