The Fight for Federal Lands

Editor’s note: The following is a lightly-edited transcription of an interview with Representative Ken Ivory.

Libertas Institute: You’ve been heavily involved in legislative efforts regarding “public lands” and financial preparedness. Please summarize your efforts regarding each, and how do they relate to one another?

Ken Ivory: The reason I ran for office was that I had always heard we were dependent upon federal funds and nobody could really pinpoint how bad it was, and by how much. Before my first session I spent a substantial amount of time with the state auditor trying to figure out the number. Turns out it’s over $5 billion out of a $13 billion budget.

In the federal government’s own financial statements, they tell us every year that their financial state is unsustainable. Michael Mullen, former Chairman of the Joint Chiefs of Staff, said that the number one risk to national security is the national debt. Erskine Bowles, co-chairman of President Barack Obama’s budget-deficit commission, said that we face the most predictable economic crisis in history. If you can read a basic balance sheet and financial statement, it’s serious.

In addition to that, on a per-pupil funding basis we’re now $2.6 billion below average. You can’t make any of this up by tweaking the tax code. You would have to more than double the state income tax to even try to close the education funding gap. You’d kill the economy in the process. Increase corporate taxes 1,000% and you kill the economy. And that’s just to address that funding problem, let alone the $5 billion in federal funds each year.

So what do we do? When you look at the trajectories that continue to worsen exponentially, these are real. We live in a quarter by quarter soundbyte world, but you play these things out not many years from now, and it’s daunting. So how do we solve those big, big problems?

There’s really only one solution big enough, and that’s accessing the trillions of dollars locked up in federally controlled lands. As recently as this year, the Institute for Energy Research estimates that there’s more than $150 trillion in minerals—just minerals, not forest, not anything else—locked up in federal lands nationwide (primarily the West), excluding Alaska.

So after that first legislative session, I went to Roger Barrus who was then chairman of the Natural Resources Committee, and asked to get together during interim to find some new way of looking at the lands issue. It’s the only solution big enough. There’s nothing else out there on the horizon, short of some miraculous technological explosion, that’s really going to help us close the gap.

So we started looking at the lands issue—why it is the way it is. I wasn’t a lands expert by any means. I didn’t know the history previously, but it didn’t make sense that there should be this federal fault line at Colorado, not including Hawaii. Something’s weird there.

As we met, Kevin Carter, director of the Utah School and Institutional Trust Lands Administration, brought up a Supreme Court case from 2009 with a unanimous opinion, Hawaii v. Office of Hawaiian Affairs. The holding of the case was that Congress doesn’t have the authority, by unilateral subsequent action, to change the rights that were agreed upon in the state’s enabling act. Then they made a statement saying that that was particularly the case where virtually all of the state’s public lands are at stake.

This makes sense, right? It makes sense that if we do this solemn, sovereign statehood enabling act, that Congress shouldn’t be able to enact some policy on its own and change that deal. So when the Federal Land Policy and Management Act passed in 1976, where Congress said that they were going to keep the lands in federal ownership, we question whether they had the authority to do that—particularly in light of this very recent Supreme Court case.

And it turns out that nobody has ever challenged FLPMA in court. The kinds of cases about land are all about management, and yeah, the federal government is the manager. They’re the trustee. And the history on that’s very rich, going back to 1763 when the king granted a charter to some of the colonies. Only 7 of the 13 had claims to western lands. When they all declared independence in 1776 and began the war, by 1780 they were out of money. So here they are trying to figure out how to raise money—do they tax their people? This is the society of the original tea party folks, and you’re going to raise taxes on them? Good luck, right?

So the seven states said that they would sell some of the claims to their western lands, and the other six would be on their own to raise their taxes. Think of that for a second. Some would sell some land, others would have to impose taxes. The six states were almost literally up in arms, it was called The Great Embarrassment. They said that they weren’t interested in contributing their blood and treasure for the other states to end up being big, landed states to control all the west. It was a tremendous impasse in the middle of the war.

The Continental Congress came up with a proposal saying that they would hold title to the land, and you can imagine the response of the states who were fighting a war against a land baron. They didn’t want to create a new one. So the Congress clarified that they would hold title in trust, to use the land to create new states and pay the public debt. It would be collateral for debt for the war, only to be used to create new states.

Based on that assurance, the states agreed to that. In their deeds of cession—New York was first, then Virginia and others—they said that it would be only to create new states, pay the public debt, and no other use or purpose whatsoever. That was their exact language. So four of the states ceded their claims to western lands to the United States prior to the Constitution. Three of them didn’t cede their lands until after the Constitution was ratified. Georgia didn’t cede their claims until 1802.

That’s significant, because it says that the deal back in 1780 matters both before and after the Constitution. That’s Article VI Clause I of the Constitution: “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” Many have referred to this 1780 agreement as one of these engagements that was carried through.

Then you get to Article IV of the Constitution: “The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…” Well, in the constitutional debate, there is only one page of notes regarding this clause. It simply says that they were going to preserve the status quo. They had already resolved the issue back in 1780. The article also said, “…and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” Well what there those claims? The state had claims on those lands, that they would only be used to make states and pay the public debt. The United States had claims on the land only to use them as collateral and to pay the debt of the revolutionary war.

By 1830, the government was out of debt. It’s the only time in our history where there has been no debt. So Congress had to dispose of the land. The central government wasn’t supposed to be a land baron.

LI: Why should any of this matter to the average person?

KI: It matters because it’s the only solution big enough to fund education and to protect access to the land. The federal government is shutting off access, thousands of roads all over the West. We’re losing recreation, hunting, fishing, grazing access all over the West. It’ll create jobs for local, state, and national economies. This is the only thing that will get us there.

LI: In your advocacy you often say “Where’s the Line?” Tell our readers what you mean by that.

KI: One of the most unprecedented aspects of our system is that we have this governing partnership between state and federal governments. They were both supreme within their respective spheres—one not being more supreme than the other. The federal government in its limited, delegated sphere was supreme. Everything else being reserved to the states, where they were supreme.

If you don’t understand what those respective spheres are, how do you know when there’s a problem? Our legislative attorneys, and most attorneys, are taught that supremacy is a one-way street, and anything that the federal government enters in on makes it supreme, and the state just has to relent and act as if it’s an administrative subdivision.

The idea, then, is where is that constitutional line? What are the powers of the states that the federal government is not supposed to intrude upon? John Dickinson, one of the prominent founders, said that it would be our own fault if the several states suffer the federal sovereignty to interfere in our jurisdiction.

So what’s fascinating is, back in 1930 there was a particular governor who said that Congress had the right to legislate on particular subjects, but that that’s not the case in the vast number of important subjects of government, such as education, business, agriculture, insurance, social welfare, and a dozen other things. In these things, he said, Washington must not interfere. Well that governor was Franklin D. Roosevelt. In 1930 he knew where the line was. And without any material change in the Constitution, since then to now, we’ve got the federal government in all of those areas and more.

So how can we defend a line that we don’t even know exists? The starting point is, is there a line between the state and federal governments in their jurisdiction, authority and powers? Clearly, there should be. And where that line is is the inquiry, so we know what we should defend and maintain along a jurisdictional line.

LI: Do you feel that Utah’s federal delegation is understanding and supportive of this effort?

KI: I think in general, very few people pause to reflect upon the fact that there is supposed to be a jurisdictional separation. Both in the state legislature, and I’m assuming in Washington, you get caught in the minutia. There are so many things going in so many different directions all the time, so it’s just a matter of putting out whatever fire is burning the hottest at the time. We don’t really pause often to think structurally, foundationally, regarding what the system is supposed to be and if we’re anywhere near that.

I would argue that the structure matters more than anything, because that was the framework designed to hold it all in orbit, if you will. I think there is a general sense that something’s not right, and yeah, we need to somehow reduce federal control and centralization. But I don’t think many people stop to say, “Wait a minute, let’s go back and look at whether there is a demarcation to specify which powers and authorities belong with the states.” What tends to happen instead is that people say, “Well, we’re at this point, so let’s just accept that and compromise.” Block grants are an example of this—that the federal government shouldn’t be doing something, so they’ll block grant it while keeping control of the strings. And we can’t even get block grants in most cases.

And when your legislative attorneys advising in government look at supremacy as a one way street, that causes problems. It’s the property law of two-year-olds: whatever they touch is theirs. They say “supremacy” so that the federal government wins, the states lose, and we just have to submit. That’s the general rule among the attorneys advising legislators. That’s a problem.

Naturally, legislators rely on these attorneys—particularly at the state level. Part-time legislators from all walks of life are often not constitutional attorneys or have not devoted all of their life to studying these structural issues. We rely upon the attorneys to advise the state in its rights and powers and authorities with respect to its partnership with the federal government. So when they default to “anything the federal government touches, it’s supreme,” it’s a challenge. It’s a big hurdle.

LI: 100% of the state income tax goes to government education. Let’s imagine your federal lands fight results in the ends you’re after. In such a scenario, do you see an opportunity to reduce or eliminate the state income tax?

KI: You know, North Dakota had the opportunity to eliminate their property tax. They chose not to for some reason, but they had sufficient revenue to do that. Yeah, there are all kinds of opportunities.

You can kind of liken it to negotiating when somebody’s airway is blocked off. If somebody is struggling for air, you’re not going to sit down and negotiate in a dispassionate fashion. Just give the guy some air! That’s all that matters. Well, in education right now, money’s not everything, but it’s certainly something. It’s a big factor. I think you solve that issue, then you have the ability in step two to determine what the best way is to work into the future on funding education in a cost-effective manner. Certainly, this shouldn’t be seen as an opportunity to simply grow government.

LI: Do states have the authority to nullify acts passed by Congress?

KI: Justice Roberts made an interesting statement a year ago. He said: “In the typical case we look to the States to defend their prerogatives by adopting ‘the simple expedient of not yielding’ to federal blandishments when they do not want to embrace the federal policies as their own. The States are separate and independent sovereigns. Sometimes they have to act like it.”

I had to look up the word ‘blandishments’ and it means to coax, coerce, or cajole. That’s the Supreme Court one year ago. Not 1798—now! It says to act like it, not ask or litigate. Act. I’ve been trying to ask our legislative attorneys: please tell me what that means? If we are a separate and independent sovereign, if we are to defend our prerogative and not yield… what does that mean?

LI: What response have you received from them?

KI: None.

LI: Do you feel that that’s because they don’t know?

KI: Potentially.

LI: What remedy is there, then, if state legislators rely heavily on the advice of attorneys who evidently do not understand what Utah’s own jurisdiction is?

KI: At the end of the day, these attorneys are employed by the legislature. Citizens can bring this issue to their legislators, and legislators as a body need to demand that we get advice on the rights, the powers, the authorities of the state in our role as an independent check to the federal government.

This is another statement that the Supreme Court made less than a year ago: “The independent power of the States also serves as a check on the power of the Federal Government.” Independent power of the state—what is that? We ought to know, right? And again, we’re getting no advice, we’re getting no delineation of what is that independent power, what is that jurisdiction possessed by the states but not the federal government (another statement out of the SCOTUS ruling a year ago)? What is this area where we are to not yield, and what does it mean to be a separate and independent sovereign and act like it?

So, citizens can demand of their legislators to understand that so they demand of counsel that we get advised on those things. Right now we haven’t been. In all the constitutional notes that I’ve seen on bills in three sessions, I can’t think of one where they’ve provided any arguments for federalism, offering the other side of the story apart from the typical references to the supremacy clause, general welfare clause, etc. I can’t think of a single instance where we’ve gotten that other side of the story.

LI: You referred to acting, not just talking. So in the context of the lands issue, rather than asking for permission from the federal government, what actions can be taken?

KI: It’s obviously a big issue, and we’re 117 years into this. You don’t flip a switch and get out of it overnight. The first thing that’s happening right now is that five states have passed Transfer of Public Lands legislation to begin the study. Measure twice, cut once. We’re doing that right now in Utah. South Carolina’s assembly passed a resolution supporting the transfer of public lands to western states, and we’ll be working to get other eastern states to do similar resolutions. This is all step one.

Overarching all of this is education. We can’t do what we don’t know. I can’t tell you how many times I’ve heard: “Well, we gave up those lands! It says right in the enabling act that they are ‘forever disclaimed’.” Oh, okay, well let’s give up. The federal government controls all the land, and let’s just give up because it says “forever disclaimed”.

Maybe we should read more of the sentence, which says, “Forever disclaim right and title until title thereto shall be extinguished.” Guess what? Alabama’s enabling act says the same thing and they’re at 2.7% public land. Louisiana’s says the same thing, they’re at 4.6%. Nebraska says the same thing, they’re 1%. North and South Dakota both say the same thing, 3.9% and 5.4% public land respectively. Utah says the same thing, and we’re 67%! So maybe it means something different than that we just gave up our land.

In fact, if you go back and look at it, that language is a quit claim. We give clean, clear title to the federal government so that as it disposes (as it’s duty bound to dispose) it does it for more money, and more quickly. It was in our best interest to give them clean, clear title so that they can do it this way. It would divert more money (at 5%) to the state education fund, and we would sooner be able to begin taxing and generating revenue off the land. That seems to make more sense, doesn’t it?

I’ve heard other arguments. One senior congressional staffer said that Utah gave up its land because we were Mormons. A 10th circuit court of appeals judge told me that the federal government controls 50% of the West because the land is so rugged. Those are some of the better answers people give as to why the federal government controls so much land.

So we need to act in this order: Education (we have to understand our rights), negotiation, legislation, litigation. This issue, this case, has never been brought to the U.S. Supreme Court. So there’s certainly opportunities there.

LI: Finally, if you could address every Utahn for two minutes, what message would you share?

KI: The promises are the same. Our statehood promises are the same with states east of Colorado, and in many cases they are word-for-word the same with respect to disposing of public lands. It’s already been done for Illinois, Missouri, Arkansas, Louisiana, Florida—Florida used to say that they were the worst off of the western states because the federal government wasn’t disposing of their land. They knew their history, knew their rights, banded together, and refused to be silent, refused to take no for an answer. Now they have less than 5% public lands. Hawaii was granted all of its land outright at statehood.

If they did it, why can’t we? This is the only solution big enough to fund education, to better care for the lands, to protect access, to create jobs, and grow economics. We need to refuse to be silent, refuse to take no for an answer, and communicate that to our elected officials. Congress must be compelled to honor to Utah and to our children, and for our future, the same exact promise it has honored with states east of Colorado and with Hawaii.